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Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Cayenne Software, Inc.
(Exact name of issuer as specified in its charter)
Massachusetts 04-2784044
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
8 New England Executive Park, Burlington, MA 01803
(Address of principal executive offices) (Zip Code)
Cadre Technologies, Inc.
1988 Incentive and Non-Statutory Stock Option Plan
1989 Non-Statutory Stock Option Plan
(Full title of the Plan)
Peter J. Boni, President
Cayenne Software, Inc.
8 New England Executive Park
Burlington, MA 01803
(617) 273-9003
(Name and address, including zip code, and
telephone number, including area code, of agent for service)
WITH A COPY TO:
John D. Patterson, Jr., Esquire
Foley, Hoag & Eliot
One Post Office Square
Boston, Massachusetts 02109
(617) 832-1000
CALCULATION OF REGISTRATION FEE
Proposed
Title of Proposed maximum
securities Amount maximum aggregate Amount of
to be to be offering price offering registration
registered registered per share price fee
Common Stock 1,508,488 $4.25 $6,411,074 $2,210.72
(par value $.01) shares
Common Stock 194,853 $4.25 $ 828,125 $ 285.56
(par value $.01) shares
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h), based on the reported high and low prices on the NASDAQ
National Market System on September 11, 1996.
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PROSPECTUS
CAYENNE SOFTWARE, INC.
8 New England Executive Park
Burlington, MA 01803
(617) 273-9003
THIS DOCUMENT CONSTITUTES PART OF A PROSPECTUS
COVERING SECURITIES THAT HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933
SEPTEMBER 16, 1996
INTRODUCTION
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This Prospectus relates to 1,703,341 shares of Common Stock, par value
$0.01 per share (the "Common Stock"), offered to key employees, officers and
directors of, and individuals providing services to, Cayenne Software, Inc.
(the "Company") under two employee benefit plans of the Company's wholly-owned
subsidiary Cadre Technologies Inc. ("Cadre") providing for the grant of stock
options, designated the 1988 Incentive and Non-Statutory Stock Option Plan (the
"1988 Plan") and the 1989 Non-Statutory Stock Option Plan (the "1989 Plan").
THE PLAN
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Purpose
- -------
The purpose of both the 1988 Plan and the 1989 Plan is to provide
additional incentive to executives and other key employees of the Company and
its subsidiaries.
Creation, Duration, Modification and Termination
- ------------------------------------------------
The 1988 Plan was adopted by the Board of Directors of Cadre (the "Cadre
Board") and approved by Cadre's stockholders in 1988. The 1989 Plan was adopted
by the Cadre Board and approved by Cadre's stockholders in 1989. Both Plans
initially provided for issuance of options to purchase shares of Cadre's Common
Stock. In connection with the merger of Cadre with a wholly-owned subsidiary of
the Company effective July 18, 1996, the options then outstanding under both
Plans were modified to be exercisable to purchase shares of the Company's
Common Stock. The Company does not intend to grant further options under either
Plan; this Prospectus relates to shares of the Company's Common Stock that may
be issued upon exercise of options outstanding at the date of this Prospectus.
A total of 593,483 shares of the Company's Common Stock are issuable on
exercise of option outstanding under the 1988 Plan and 113,330 shares under the
1989 Plan. The 1988 Plan authorizes (i) the grant of options to purchase Common
Stock intended to qualify as incentive stock options ("Incentive Options"), as
defined in Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code"), and (ii) the grant of options that do not so qualify ("Nonqualified
Options"). The 1989 Plan authorizes the grant of Nonqualified options.
Each Plan provides that the Board may amend the Plan, except that the class
of employees eligible to receive options, the maximum term of options and the
aggregate number of shares issuable under the 1988 Plan may not be changed or
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increased (except in the event of certain changes in the Company's capital
structure) without the consent of the stockholders.
Options may not be granted under either Plan more than ten years after the
effective date of the Plan. Each Plan will terminate when the total amount of
the Common Stock with respect to which options may be granted under the Plan
will have been issued upon the exercise of options, unless sooner terminated by
the Board.
Administration
- --------------
Each Plan is administered by the Cadre Board. Currently, the sole Director
of Cadre is Peter J. Boni, who is President and Chief Executive Officer of the
Company and a member of the Company's Board of Directors. Each Plan authorizes
the Cadre Board to interpret the Plan and the options granted thereunder, to
establish, amend and revoke rules and regulations for the administration of the
Plan, to make changes to any outstanding option granted thereunder, and
generally, to exercise such powers and to perform such acts as are deemed
necessary or expedient to promote the best interests of the Company with
respect to the Plan.
Under each Plan, the Cadre Board selects the individual to whom options are
granted and determines the option exercise price and other terms of each award
(including whether repurchase rights of the Company or certain resale
restrictions are to be imposed on shares subject to the option), subject to the
provisions of the Plan.
Information about each Plan and its administration may be obtained by
calling or writing to the Company's Chief Financial Officer, Cayenne Software,
Inc., 8 New England Executive Park, Burlington, MA 01803, (617) 273-9003.
Participation
- -------------
Incentive Options under the 1988 Plan may be granted only to officers and
other employees of the Company and its subsidiaries. Nonqualified Options under
either Plan may be granted to officers or other employees of the Company and its
subsidiaries and to members of the Board and consultants or other persons who
render services to the Company (regardless of whether they are also employees).
No Incentive Option may extend for more than ten years from the date of
grant (five years in the case of persons holding 10% or more of the total
combined voting power of all classes of stock of the Company or any subsidiary).
The shares of stock issuable upon exercise of an option by any officer, director
or beneficial owner of more than 10% of the Common Stock of the Company may not
be sold or transferred for a period of six months following the grant of such
option. The Committee may accelerate the time for exercise of all unexercised
and unexpired options in connection with a merger, consolidation, liquidation or
sale of substantially all of the assets of the Company.
The exercise price of Incentive Options granted under the 1988 Plan may not
be less than 100% of the fair market value of the Common Stock on the date of
grant (or 110% of the fair market value in the case of persons holding 10% or
more of the total combined voting power of all classes of stock of the Company
or any subsidiary). The aggregate fair market value (determined at the time of
grant) of shares of Common Stock issuable pursuant to Incentive Options which
first become exercisable by an employee in any calendar year may not exceed
$100,000 (or such greater amount as may from time to time be permitted with
respect to Incentive Options by the Code or any other applicable law or
regulation).
The exercise price of Nonqualified Options granted under the 1988 Plan may
not be less than 85% of the Fair Market Value of the Common Stock at the date of
grant. The exercise price of options granted under the 1989 Plan is not subject
to any general limitation.
Shares of Common Stock issued under either Plan may be either treasury
shares or authorized but unissued shares.
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Exercise of Options; Payment of Exercise Price
- ----------------------------------------------
Each option granted under either Plan may be exercised, so long as it is
valid and outstanding, from time to time in part or as a whole, subject to any
limitations with respect to the number of shares for which the option may be
exercised at a particular time and to such other conditions as the Committee in
its discretion may specify upon granting the option.
Options may be exercised by the delivery of written notice to the Company
setting forth the number of shares of Common Stock the option holder then
desires to purchase and specifying the address to which the certificates for
such shares are to be mailed, together with (i) cash, certified check, bank
draft or postal or express money order equal to the option price of such shares;
(ii) with the consent of the Committee, other shares of Common Stock of the
Company having a fair market value equal to the option price of such shares;
(iii) with the consent of the Committee, such other consideration which is
acceptable to the Committee and which has a fair market value equal to the
option price of such shares; or (iv) with the consent of the Committee, a
combination of (i), (ii) and/or (iii).
Resale Restrictions
- -------------------
This Prospectus does not cover resales by affiliates of the Company, as
defined in the Act, of shares of the Common Stock purchased under either Plan.
Resales by affiliates of Common Stock purchased under either Plan will be
subject to the restrictions thereon imposed by the Act, and offers and sales by
affiliates may be made only pursuant to an effective registration statement
under the Act or an exemption from the registration requirements of the Act.
Officers, directors and beneficial owners of greater than 10% of the
outstanding shares of Common Stock who have been granted options under either
Plan may be subject to Section 16 of the Securities Exchange Act of 1934 and to
the rules promulgated thereunder. Such persons should consult their tax,
accounting and legal advisors with respect to options granted to them under
either Plan and the acquisition and disposition of shares of Common Stock
obtained upon exercise of such options.
United States Income Tax Information
- ------------------------------------
The following discussion is intended only as a brief overview of certain of
the current federal income tax laws applicable to the Plans. Option holders
should consult their tax advisors concerning their own federal income tax
situations, as well as concerning state tax aspects of the acquisition and
exercise of options granted to them under either Plan. No state tax matters are
addressed in the following discussion.
The grantee of a Nonqualified Option recognizes no income for federal
income tax purposes on the grant thereof. On the exercise of a Nonqualified
Option, the difference between the fair market value of the underlying shares of
Common Stock and the option exercise price is treated as compensation to the
holder of the option taxable as ordinary income in the year of exercise, and
such fair market value becomes the basis for the underlying shares which will be
used in computing any capital gain or loss upon disposition of such shares. The
Company may deduct for the year of exercise an amount equal to the amount
recognized by the option holder as ordinary income upon exercise of a
Nonqualified Option.
The grantee of an Incentive Option normally will recognize no income for
federal income tax purposes on the grant thereof. Except as provided below with
respect to the alternative minimum tax, there is no tax upon exercise of an
Incentive Option. If no disposition of shares acquired upon exercise of the
Incentive Option is made by the option holder within two years from the date of
the grant of the Incentive Option or within one year after exercise of the
option, any gain realized by the option holder on the subsequent sale of such
shares is treated as a long-term capital gain for federal income tax purposes.
If the shares are sold prior to the expiration of such periods, the difference
between the lesser of the value of the shares at the date of
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exercise or at the date of sale and the exercise price of the option is treated
as compensation to the employee taxable as ordinary income and the excess gain,
if any, is treated as capital gain (which will be long-term capital gain if the
shares are held for more than one year).
The excess of the fair market value of the underlying shares over the
option price at the time of exercise of an Incentive Option will constitute an
item of tax preference for purposes of the alternative minimum tax. Taxpayers
who incur the alternative minimum tax are allowed a credit which may be carried
forward indefinitely to be used as a credit against the regular tax liability in
a later year; however, the minimum tax credit can not reduce the regular tax
below the alternative minimum tax for that carryover year.
In connection with the sale of the shares covered by Incentive Options,
under the 1988 Plan, the Company is allowed a deduction for tax purposes only to
the extent, and at the time, the option holder receives ordinary income (for
example, by reason of the sale of shares by the holder of an Incentive Option
within two years of the date of the granting of the option or one year after the
exercise of the option).
Neither Plan is subject to the provisions of the Employee Retirement Income
Security Act of 1974, nor is either plan qualified under Section 401(a) of the
Code.
Assignment of Interests Under The Plan; Withdrawal From the Plan
- ----------------------------------------------------------------
Options under each Plan are nontransferable except by will or by the laws
of descent and distribution, and are exercisable, during the lifetime of the
option holder, only by the option holder. Options, other than Nonqualified
Options granted to persons who are not employees of the Company, terminate on
the earlier of: (i) the date of expiration thereof, (ii) the date of termination
of the option holder's employment with or performance of services to the Company
by the Company for cause (as determined by the Company), or voluntarily by the
option holder, (iii) ninety days after termination of the option holder's
employment with or services to the Company by the Company without cause, other
than in the case of death or permanent and total disability, or (iv) one year
after the date of death or permanent and total disability of the option holder
while in the employ of the Company. Nonqualified Options granted to persons who
are not employees of the Company need not, unless the Committee determines
otherwise, be subject to the provisions set forth in clauses (ii) through (iv)
above.
Charges and Deductions, and Liens Therefor
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Neither Plan provides that a person has or may create a lien on any funds,
securities, or other property held under the Plan.
Availability of Documents Incorporated by Reference
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A copy of any document incorporated by reference in Item 3 of Part II of
the Registration Statement of which this Prospectus is a part (not including
exhibits), such documents incorporated by reference constituting a prospectus
under Section 10(a) of the Act, and any other documents required to be delivered
to employees pursuant to Rule 428(b) promulgated under the Act will be provided
to any option holder by the Company upon written or oral request to the
Company's Chief Financial Officer, Cayenne Software, Inc., 8 New England
Executive Park, Burlington, MA 01803, (617) 273-9003.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
(the "Commission") are incorporated in this Registration Statement by reference:
(a) The Company's Annual Report (Form 10K) for the year ended June 30,
1995, File No. 0-19682.
(b) The Company's Quarterly Reports on Form 10-Q for the quarters ended
September 30, 1995, December 31, 1995, and March 31, 1996, File No. 0-19682.
(c) The description of Common Stock included in the Company's Registration
Statement on Form S-1, File No. 33-43401.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing
of a post-effective amendment 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 in this Registration Statement 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.
The validity of the securities registered hereby is being passed upon for
the Company by Foley, Hoag & Eliot, Boston, Massachusetts.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Paragraph D of Article 6 of the Company's Articles provides that, to the
maximum extent permitted by Massachusetts law (as the same exists or is
subsequently amended), no director shall be personally liable to the Company or
any of its stockholders for monetary damages arising out of the director's
breach of fiduciary duty as a director of the Company. Section 13(b)(l1/2) of
the Massachusetts BCL provides that a Massachusetts corporation's articles of
organization may state a provision eliminating or limiting the personal
liability of a director to a corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that such provision
may not eliminate or limit the liability of a director (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 specified sections of the Massachusetts
BCL establishing the liability of directors for certain unauthorized
distributions and loans to insiders or (iv) for any transaction from which the
director derived an improper personal benefit.
Section 6 of Article VII of the the Company's By-Laws provides that the
Company shall, to the extent legally permissible, indemnify each of its
directors and officers (including persons who serve at its request as directors,
officers or trustees of any organization in which the Company has an interest as
a stockholder, creditor or otherwise), against all liabilities and expenses
reasonably incurred by such persons in connection with the defense or
disposition of any action, suit or proceeding in which they may be involved or
with which they may be threatened by reason of being or having been such a
director or officer, except with respect to any matter as to which they shall
have been adjudicated not to have acted in good faith in the reasonable belief
that their action was in the best interests of the Company. Section 67 of the
Massachusetts BCL authorizes a Massachusetts corporation to indemnify its
directors, officers, employees and other agents unless such person shall have
been adjudicated in any proceeding not to have acted in good faith in the
reasonable belief that such action was in the best interests of the corporation.
The effect of these provisions would be to permit indemnification by the
Company for, among other liabilities, (a) liabilities arising out of the
Securities Act in connection with this Registration Statement (see Item 9
below).
Section 67 of the Massachusetts BCL also affords a Massachusetts
corporation the power to obtain insurance on behalf of its directors, officers,
employees and agents against liabilities incurred by them in those capacities or
out of their status as such, whether or not the corporation would have the power
to indemnify them against those liabilities. the Company has procured a
directors' and officers' liability and company reimbursement liability insurance
policy that (a) insures directors and officers of the Company against losses (in
excess of a deductible amount) arising from certain claims made against them by
reason of certain acts done or attempted by such directors or officers and (b)
insures the Company against losses (in excess of a deductible amount) arising
from any such claims, but only if the Company is required or permitted to
indemnify such directors or officers for such losses under statutory or common
law or under provisions of the Company's articles of organization or by-laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Restated Articles of Organization of the Company, incorporated by
reference to the Exhibits to the Company's Registration Statement on
Form S-1, File No. 33-45841.
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4.2 Amended and Restated By-Laws of the Company, incorporated by reference
to the Exhibits to the Company's Registration Statement on Form S-1,
File No. 43401.
4.3 1988 Incentive and Non-Statutory Stock Option Plan.
4.4 1989 Non-Statutory Stock Option Plan.
5.1 Opinion of Counsel.
23.1 Consent of Independent Accountants.
23.2 Consent of Counsel (included in Exhibit 5.1).
24.1 Power of Attorney (contained on the signature page).
ITEM 9. UNDERTAKINGS.
1. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
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.
2. The undersigned Registrant hereby undertakes:
(a) 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;
(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;
(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 2 (a)(1)(i) and 2 (a)(1)(ii) 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 Securities Exchange Act of 1934 that are
incorporated by reference herein.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment 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) 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.
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3. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 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 Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Burlington, Commonwealth of Massachusetts, on the
11th day of September 1996.
CAYENNE SOFTWARE, INC.
By: /S/ Peter J. Boni
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Peter J. Boni
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature appears
below constitutes and appoints Peter J. Boni and Eugene J. DiDonato, 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, 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 he may
deem necessary or advisable to be done in connection with this Registration
Statement, 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 their or his substitute or substitutes, any 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 in the
capacities and on the dates indicated.
SIGNATURE Title DATE
--------- ----- ----
/S/ Peter J. Boni President, Chief September 11, 1996
- ----------------- Executive Officer and
Peter J. Boni Director
(Principal Executive
Officer)
/S/ Frederick H. Phillips Vice President--Finance September 11, 1996
- ------------------------- Adminstration, Treasurer
Frederick H. Phillips and Chief Financial and
Accounting Officer
/S/ Charles W. Bachman Chairman of the Board of September 11, 1996
- ---------------------- Directors
Charles W. Bachman
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/S/ John J. Alexander Director September 11, 1996
- ---------------------
John J. Alexander
/S/ Director September __, 1996
- ---------------------
R. John Fletcher
/S/ William H.D. Goddard Director September 11, 1996
- ------------------------
William H.D. Goddard
/S/ Allyn C. Woodward, JR. Director September 11, 1996
- --------------------------
Allyn C. Woodward, Jr.
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EXHIBIT INDEX
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Exhibit
No. Description Page
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4.1 Restated Articles of Organization of the Company
(incorporated by reference)
4.2 Amended and Restated By-Laws of the Company
(incorporated by reference)
4.3 1988 Incentive and Non-Statutory Stock Option Plan
4.4 1989 Non-Statutory Stock Option Plan
5.1 Opinion of Counsel
23.1 Consent of Independent Accountants
23.2 Consent of Counsel (included in Exhibit 5.1)
24.1 Power of Attorney (contained on the signature
page)