As filed with the Securities and Exchange Commission on October 23, 1996 File No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 _________________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 __________________________ FTP SOFTWARE, INC. (Exact name of registrant as specified in its charter) MASSACHUSETTS 04-2906463 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification No.) 100 BRICKSTONE SQUARE FIFTH FLOOR ANDOVER, MASSACHUSETTS 01810 (508) 685-4000 (Address of principal executive offices) _________________________ FTP SOFTWARE, INC. 1996 EXECUTIVE EQUITY INCENTIVE PLAN _________________________ (Full title of the plan) DOUGLAS F. FLOOD SENIOR VICE PRESIDENT AND GENERAL COUNSEL FTP SOFTWARE, INC. 100 BRICKSTONE SQUARE ANDOVER, MASSACHUSETTS 01810 (508) 685-4000 _________________________ (Name, address and telephone number, including area code, of agent for service) CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------------------------------------------------------ Proposed maximum Proposed maximum aggregate Title of securities to be Amount to be registered offering price per offering price(1) Amount of registered share(1) registration fee(2) - ------------------------------------------------------------------------------------------------------------------------------ Common Stock, par value $.01 1,500,000 shares $9.50 $9,742,000 $2952.12 - ------------------------------------------------------------------------------------------------------------------------------ (1) The offering price for 1,400,000 shares not subject to options on the date hereof has been estimated solely for the purpose of determining the registration fee pursuant to Rules 457(h) and 457(c) on the basis of the average of the high and low prices of the FTP Software, Inc. Common Stock, par value $.01, reported on the Nasdaq National Market on October 22, 1996 ($6.28). The offering price for 100,000 shares subject to options outstanding on the date hereof is the actual exercise price of such options. (2) Registration fee equals (a) $287.88 payable in respect of 100,000 shares subject to options outstanding on the date hereof at an exercise price of $9.50 per share and (b) $2,664.24 payable in respect of 1,400,000 shares that have not been issued or made subject to options. ================================================================================ PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. --------------------------------------- FTP Software, Inc. (the "Registrant" or the "Company") hereby incorporates the following documents herein by reference: (a) the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1995 filed with the Securities and Exchange Commission (the "Commission") on April 1, 1996, as amended by Amendment No. 1 on Form 10-K/A filed with the Commission on April 29, 1996; (b) all other reports filed by the Company pursuant to Section 13(a) or 15(d) of the Securities and Exchange Act of 1934, as amended (the "Exchange Act"), since December 31, 1995; (c) the description of the Company's Common Stock contained in the Company's registration statement on Form 8-A filed with the Commission under the Exchange Act on September 23, 1993, including any amendment or report filed for the purpose of updating such description; and (d) the description of the Company's Junior Preferred Stock Purchase Rights contained in its Registration Statement on Form 8-A under the Exchange Act filed with the Commission on December 12, 1995, including any amendment or report filed for the purpose of updating such description. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment to this registration statement which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be part hereof from the date of filing of such documents. ITEM 4. DESCRIPTION OF SECURITIES. ------------------------- Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. -------------------------------------- Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. ----------------------------------------- Section 67 of Chapter 156B of the Massachusetts General Laws authorizes a corporation to indemnify any director, officer, employee or other agent of the corporation, and a person who serves at the corporation's request as a director, officer, employee or other agent of another organization, or who serves at its request in any capacity with respect to any employee benefit plan, to whatever extent specified in or authorized by (a) the articles of organization, (b) a by-law adopted by the stockholders or (c) a vote adopted by the holders of a majority of the shares of stock entitled to vote on the election of directors. The Registrant's Amended and Restated Bylaws (the "Bylaws") provide indemnity to each of its directors and officers (including persons who serve at its request as directors, officers or trustees of another organization, or in any capacity with respect to any employee benefit plan) against all liabilities and expenses, including amounts paid in satisfaction of judgments, in compromise or as fines and penalties, and counsel fees, reasonably incurred by him or her in connection with the defense or disposition of any action, suit or other proceeding, whether civil or criminal, in which he or she may be involved or with which he or she may be threatened, while in office or II-1 thereafter, by reason of his or her being or having been such a director or officer. Under Massachusetts law and the Bylaws, no indemnification may be provided for any person with respect to any matter as to which he or she shall have been adjudicated in any proceeding not to have acted in good faith in the reasonable belief that his or her action was in the best interest of the Registrant (any person serving another organization in one or more of the indicated capacities at the request of the Registrant who shall have acted in good faith in the reasonable belief that his or her action was in the best interest of such other organization to be deemed as having acted in such manner with respect to the Registrant) or, to the extent that such matter relates to service with respect to any employee benefit plan, in the best interest of the participants or beneficiaries of such employee benefit plan. The Bylaws also provide that as to any matter disposed of by a compromise payment by such director or officer, pursuant to a consent decree or otherwise, no indemnification either for said payment or for any other expenses shall be provided unless such compromise shall be approved as in the best interest of the Registrant, after notice that it involves such indemnification: (a) by a disinterested majority of the directors then in office; (b) by a majority of the disinterested directors then in office, provided that there has been obtained an opinion in writing of independent legal counsel to the effect that such director or officer appears to have acted in good faith in the reasonable belief that his or her action was in the best interest of the Registrant; or (c) by the holders of a majority of the outstanding stock at the time entitled to vote for directors, voting as a single class, exclusive of any stock owned by any interested director or officer. The Bylaws allow expenses, including counsel fees, reasonably incurred by any director or officer in connection with the defense or disposition of any such action, suit or other proceeding to be paid from time to time by the Registrant in advance of the final disposition thereof upon receipt of an undertaking by such director or officer to repay the amounts so paid to the Registrant if it is ultimately determined that indemnification for such expenses is not authorized by the Bylaws. The right of indemnification provided in the Bylaws is not exclusive of and does not affect any other rights to which any director or officer may be entitled. As used in the Bylaws, the terms "director" and "officer" include the relevant individual's heirs, executors and administrators, and an "interested" director or officer is one against whom in such capacity the proceedings in question or another proceeding on the same or similar grounds is then pending. Section 67 of Chapter 156B of the Massachusetts General Laws further authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or other agent of the corporation, or who is or was serving at the request of the corporation as a director, officer, employee or other agent of another organization or with respect to any employee benefit plan, against any liability incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not the corporation would have the power to indemnify him or her against such liability. The Registrant has purchased directors' and officers' liability insurance. Such insurance covers its directors and officers with respect to liability that they may incur in connection with their serving as such. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. ----------------------------------- Not applicable. ITEM 8. EXHIBITS. -------- Exhibit 5 Opinion of W. Robert Kellegrew, Jr., Esq. 23.1 Consent of W. Robert Kellegrew, Jr., Esq. (contained in the opinion filed as Exhibit 5 to this registration statement) 23.2 Consent of Coopers & Lybrand L.L.P. 23.3 Consent of Clifford Chance 24 Powers of Attorney (included on signature page) II-2 ITEM 9. UNDERTAKINGS. ------------ (a) The undersigned Registrant hereby undertakes: (1) to file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement, (i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the "Securities Act"), (ii) to reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most recent post-effective amendment hereof), which, individually or in the aggregate, represent a fundamental change in the information set forth in this registration statement, and (iii) to include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) shall not apply -------- ------- if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Securities and Exchange Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this registration statement; (2) that, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and (3) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. II-3 SIGNATURES ---------- Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement on Form S-8 to be signed on its behalf by the undersigned, thereunto duly authorized, in the Town of Andover, The Commonwealth of Massachusetts, on the 23rd day of October, 1996. FTP SOFTWARE, INC. By: /s/ David H. Zirkle ------------------- David H. Zirkle Chairman and Chief Executive Officer (Principal Executive Officer) POWER OF ATTORNEY ----------------- Each person whose signature appears below hereby constitutes and appoints Glenn C. Hazard, Douglas F. Flood and John J. Warnock, Jr., and each of them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution, to sign on his or her behalf, individually and in each capacity stated below, all amendments and post-effective amendments to this Registration Statement on Form S-8 and to file the same, with all exhibits thereto and any other documents in connection therewith, with the Securities and Exchange Commission under the Securities Act of 1933, granting unto said attorneys-in- fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully and to all intents and purposes as each might or could do in person, hereby ratifying and confirming each act that said attorneys-in-fact and agents may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated: SIGNATURE TITLE DATE --------- ------ ----- /s/ David H. Zirkle Chairman and Chief Executive October 23, 1996 - --------------------------- Officer (Principal Executive David H. Zirkle Officer) and a Director /s/ John J. Warnock, Jr. Senior Vice President, Chief October 23, 1996 - --------------------------- Financial Officer and Treasurer John J. Warnock, Jr. (Principal Financial and Accounting Officer) /s/ Vinton G. Cerf Director October 23, 1996 - --------------------------- Vinton G. Cerf /s/ David D. Clark Director October 19, 1996 - --------------------------- David D. Clark II-4 SIGNATURE TITLE DATE --------- ------ ----- /s/ F. David Fowler Director October 23, 1996 - --------------------------- F. David Fowler /s/ Glenn C. Hazard President and a Director October 23, 1996 - --------------------------- Glenn C. Hazard /s/ John H. Keller Senior Vice President of Global October 23, 1996 - --------------------------- Engineering and Development and John H. Keller a Director /s/ John A. Kimberley Vice Chairman and a Director October 23, 1996 - --------------------------- John A. Kimberley /s/ Louise A. Mathews Director October 23, 1996 - --------------------------- Louise A. Mathews II-5 EXHIBIT INDEX NUMBER TITLE OF EXHIBIT - ------ ----------------- 5 Opinion of W. Robert Kellegrew, Jr., Esq. 23.1 Consent of W. Robert Kellegrew, Jr., Esq. (contained in the opinion filed as Exhibit 5 to this registration statement) 23.2 Consent of Coopers & Lybrand L.L.P. 23.3 Consent of Clifford Chance 24 Powers of Attorney (included on signature page)