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As filed with the Securities and Exchange Commission on August 17, 2000
Registration 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
MACROMEDIA, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 94-3155026
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
600 TOWNSEND STREET, SUITE 310W
SAN FRANCISCO, CALIFORNIA 94103
(Address of principal executive offices, including zip code)
1992 EQUITY INCENTIVE PLAN
1993 EMPLOYEE STOCK PURCHASE PLAN
1999 STOCK OPTION PLAN
NON-PLAN OPTION GRANTS
OPTIONS OF MIDDLESOFT, INC. ASSUMED BY REGISTRANT
(Full title of the plan)
ELIZABETH A. NELSON
EXECUTIVE VICE PRESIDENT, CHIEF FINANCIAL OFFICER AND SECRETARY
600 TOWNSEND STREET, SUITE 310W
SAN FRANCISCO, CALIFORNIA 94103
(415) 252-2000
(Name, address and telephone number, including area code, of agent for service)
COPIES TO:
Gordon K. Davidson, Esq.
Robert A. Freedman, Esq.
Andrew J. Schultheis, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Amount Proposed Maximum Proposed Maximum
Title of Securities to be to be Offering Price Per Aggregate Offering Amount of
Registered Registered Share Price Registration Fee
----------------------------- ---------- ------------------ ------------------ -----------------
<S> <C> <C> <C> <C>
Common Stock, $0.001 par
value per share 2,200,000(1) $ 77.00 (2) $169,400,000 $44,721.60
Common Stock, $0.001 par
value per share 350,000(3) $ 77.00 (2) $ 26,950,000 $ 7,114.80
Common Stock, $0.001 par
value per share 2,300,000(4) $ 64.8983 (2) $149,266,090 $39,406.25
</TABLE>
---------------------
1 Represents shares added to the pool of shares available for issuance
under the Registrant's 1992 Equity Incentive Plan.
2 Estimated as of August 16, 2000, pursuant to Rule 457(c) solely for the
purpose of calculating the amount of the registration fee.
3 Represents shares added to the pool of shares available for issuance
under the Registrant's 1993 Employee Stock Purchase Plan.
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
Common Stock, $0.001 par 835,000(5) $67.2689(6) $56,169,531.50 $14,828.76
value per share
----------------------------- ---------- -------- --------------- ------------
Common Stock, $0.001 par
value per share 5,351(7) $22.9901(6) $123,020.03 $32.48
----------------------------- ---------- -------- --------------- ------------
Total Fee $106,103.89
</TABLE>
-------------------
4 Represents shares subject to outstanding options under the Registrant's
1999 Stock Option Plan.
5 Represents shares subject to outstanding options under non-plan stock
option grants.
6 Estimated weighted average exercise price per share.
7 Represents shares subject to outstanding options of Middlesoft, Inc.
assumed by Registrant.
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ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended March 31, 2000 filed on June 27, 2000, which Annual
Report contains audited consolidated financial statements as
of March 31, 2000 and 1999 and for each of the years in the
three-year period ended March 31, 2000;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 2000 filed on August 11, 2000; and
(c) The description of the Registrant's Common Stock contained in
the Registrant's registration statement on Form 8-A filed on
October 22, 1993, as amended on the Registrant's Form 8-A/A
filed on October 5, 1995, including any amendment or report
filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing
of a post-effective amendment which indicates that all securities registered
hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference herein and to be a
part hereof from the date of the 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.
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 corporation); (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
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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 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 agreements also provide 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, and 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 interest of the
Registrant, or a proceeding arising out of conduct a director or executive
officer had reasonable cause to believe was unlawful.
The indemnification agreements require 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, an indemnification agreement or
otherwise to be indemnified for such expenses. The indemnification agreements
provide that they are 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 approval by
the Board, has purchased director and officer liability insurance.
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
<TABLE>
<S> <C>
4.01 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) filed with
the Commission on February 3, 1995).
4.02 Certificate of Amendment of Registrant's Restated
Certificate of Incorporation (incorporated herein by
reference to the Registrant's registration statement
on Form 8-A/A filed with the Commission on October 5,
1995).
4.03 Registrant's Bylaws, as amended (incorporated herein
by reference to Exhibit 3.02 to the Registrant's
Registration Statement on Form S-1 (File No.
33-70624) declared effective by the Commission on
December 10, 1993 (the "Form S-1")).
4.04 Amendment to Registrant's Bylaws effective October
15, 1993 (incorporated herein by reference to Exhibit
3.03 to the Form S-1).
4.05 Registrant's 1992 Equity Incentive Plan, as amended.
4.06 Registrant's 1993 Employee Stock Purchase Plan
4.07 Registrant's 1999 Stock Option Plan
4.08 Registrant's Form of Non-Plan Stock Option Grant
4.09 Middlesoft, Inc. 1999 Stock Option Plan
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit
5.01).
23.02 Consent of KPMG LLP, independent auditors.
24.01 Power of Attorney (see signature pages following Item
9).
</TABLE>
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities
<PAGE>
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 paragraphs (1)(i) and (1)(ii) above do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed 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.
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 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial BONA FIDE offering thereof.
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 discussed in Item 6
hereof, or otherwise, the Registrant has been advised that in the opinion of
the 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 hereby, 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of San Francisco, State of California,
on the 14th day of August, 2000.
MACROMEDIA, INC.
By: /s/ Elizabeth A. Nelson
--------------------------------
Elizabeth A. Nelson
Executive Vice President, Chief
Financial Officer and Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature
appears below and on the next page constitutes and appoints Robert K. Burgess
and Elizabeth A. Nelson, and each of them, his true and lawful
attorneys-in-fact and agents with full 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 on Form S-8, 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
substitute or substitutes, 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 by the following persons on this page
and the next in the capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
PRINCIPAL EXECUTIVE OFFICER:
/s/ Robert K. Burgess Chief Executive Officer and August 15, 2000
------------------------ Chairman
Robert K. Burgess
PRINCIPAL FINANCIAL OFFICER
AND ACCOUNTING OFFICER:
/s/ Elizabeth A. Nelson Executive Vice President, August 15, 2000
------------------------ Chief Financial Officer
Elizabeth A. Nelson and Secretary
<PAGE>
Signature Title Date
--------- ----- ----
ADDITIONAL DIRECTORS:
/s/ John (Ian) Giffen
------------------------ Director August 16, 2000
John (Ian) Giffen
/s/ Mark D. Kvamme
------------------------ Director August 17, 2000
Mark D. Kvamme
------------------------ Director August __, 2000
Donald L. Lucas
------------------------ Director August __, 2000
Alan Ramadan
/s/ William B. Welty
------------------------ Director August 16, 2000
William B. Welty
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