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Registration No. 333-xxxxx
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Cayenne Software, Inc.
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(Exact name of issuer as specified in its charter)
Massachusetts 04-2784044
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
8 New England Executive Park, Burlington, MA 01803
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(Address of principal executive offices) (Zip Code)
Cayenne Software, Inc.
Amended 1996 Incentive and Nonqualified Stock Option Plan
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(Full title of the Plan)
Peter J. Boni, President
Cayenne Software, Inc.
8 New England Executive Park
Burlington, MA 01803
(617) 273-9003
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(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
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CALCULATION OF REGISTRATION FEE
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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
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Common Stock 2,000,000 $3.375 $6,750,000 $2,045.45
(par value $.01) shares
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(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 May 16, 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
MAY __, 1997
INTRODUCTION
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This Prospectus relates to 2,000,000 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 the Company's Amended 1996 Incentive and Nonqualified Stock
Option Plan (the "1996 Plan").
THE PLAN
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Purpose
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The purpose of the 1996 Plan is to provide additional incentive to
executives and other key employees of the Company and its subsidiaries.
The 1996 Plan authorizes the grant of (i) 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) options that do not so qualify ("Nonqualified Options").
Up to 2,000,000 shares of Common Stock (subject to adjustment upon certain
changes in the capitalization of the Company) may be issued pursuant to options
granted under the 1996 Plan.
Creation, Duration, Modification and Termination
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The Company's Board of Directors adopted the 1996 Plan in July 1996 and
approved an amendment in October 1996. The stockholders approved the 1996 Plan
as amended at the special meeting in lieu of annual meeting of stockholders on
November 20, 1996.
No options may extend for more than ten years from the date of grant (five
years in the case of an optionee who owns stock possessing more than ten percent
(10%) of the total combined voting power of all classes of stock of the Company
or any parent or subsidiary ("greater-than-ten-percent-stockholders")). No
incentive option may be granted under the 1996 Plan more than ten years after
the date of the Plan's adoption.
Administration
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The 1996 Plan will be administered by the Compensation Committee of the
Board of Directors, the members of which are not officers or employees of the
Company (the "Committee"). The Committee will select the individuals to whom
options are granted and will determine the option exercise price and other terms
of each award, subject to the provisions of the 1996 Plan. Participants
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may obtain additional information about the 1996 Plan or the Compensation
Committee by calling or writing to the Vice President, Human Resources, Cayenne
Software, Inc., 8 New England Executive Park, Burlington, MA 01803, telephone
(617) 273-9003. The members of the Committee serve at the pleasure of the Board
of Directors. The Committee members may own shares of Common Stock of the
Company as well as options to purchase shares of Common Stock under the 1996
Plan or other plans.
Participation
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Incentive Options may be granted under the 1996 Plan to employees,
including officers and Directors who are also employees. As of September 1,
1996, approximately 375 employees were eligible to participate in the 1996 Plan.
Nonqualified Options may be granted under the 1996 Plan to employees, officers,
individuals providing services to the Company and Directors, whether or not they
are employees of the Company.
Exercise of Options; Payment of Exercise Price
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Each option granted under the 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.
The exercise price of Incentive Options granted under the 1996 Plan must be
at least equal to the fair market value of the Common Stock on the date of grant
(110% of fair market value in the case of a greater-than-ten-percent-
stockholder). The aggregate fair market value (determined at the time of grant)
of shares issuable pursuant to Incentive Options which first become exercisable
by an employee or officer in any calendar year may not exceed $100,000.
Payment of the exercise price of the shares subject to the option may be
made with (i) cash or check for an amount equal to the option price for such
shares, (ii) with the consent of the Committee, shares of Common Stock having a
fair market value equal to the option price of such shares, (iii) with the
consent of the Committee, a personal recourse note issued by the optionee to the
Company in a principal amount equal to such aggregate exercise price, (iv) with
the consent of the Committee, delivery of such documentation as the Committee
and the broker, if applicable, will require to effect an exercise of the option
and delivery to the Company of the sale or loan proceeds required to pay the
option price, (v) with the consent of the Committee, such other consideration
which is acceptable to the Committee and has a fair market value equal to the
option price of such shares, or (vi) with the consent of the Committee, a
combination of the foregoing.
Resale Restrictions
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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 the 1988
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
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under the 1988 Plan and the acquisition and disposition of shares of Common
Stock obtained upon exercise of such options.
United States Income Tax Information
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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 on the exercise date 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. Subject to certain limitations, 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 recognizes 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 Incentive 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 exercise or at the date of
sale and the exercise price of the Incentive 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, 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 Incentive Option or one year after the exercise of the
Incentive Option), subject to certain limitations on the deductibility of
compensation paid to executives.
Assignment of Interests Under the Plan; Withdrawal From the Plan
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Options are non-transferable except by will or by the laws of descent or
distribution and are exercisable, during the optionee's lifetime, only by the
optionee. Incentive Options generally may not be exercised after (i) termination
of the optionee's employment by optionee voluntarily or by the Company for
cause, (ii) ninety days after termination of the optionee's employment by the
Company without cause, including optionee's retirement in accordance with the
Company's policy and (iii) one year following the optionee's termination of
employment with the Company by reason of death or disability. The terms and
conditions of Nonqualified Options will be determined by the Committee in
connection with each grant, if any.
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Charges and Deductions, and Liens Therefor
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The 1996 Plan does not provide that any 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, as amended, (Form 10K) for the transition
period ended December 31, 1996, File No. 0-19682.
(b) The Company's Quarterly Report (Form 10-Q) for the three months ended
March 31, 1997, 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 LLP, 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)(l 1/2) 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.
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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.
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 Amended 1996 Incentive and Non-Qualified Stock Option Plan.
5.1 Opinion of Counsel.
23.1 Consent of Coopers & Lybrand, L.L.P.
23.2 Consent of Deloitte & Touche LLP
23.3 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.
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(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.
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 Amendment to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the Town of Burlington, Massachusetts, on January
31, 1997.
CAYENNE SOFTWARE, INC.
By: /s/Frederick H. Phillips
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Frederick H. Phillips
Vice President, Finance and Administration
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints Frederick H. Phillips 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, 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 in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
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/s/Peter J. Boni President and January 31,1997
- ----------------------------- Chief Executive Officer,
Peter J. Boni Director
/s/Frederick H. Phillips Treasurer and Chief Financial January 31,1997
- ----------------------------- Officer
Frederick H. Phillips (Principal Financial and
Accounting Officer)
/s/Charles W. Bachman Chairman of the Board January 31,1997
- ----------------------------- of Directors
Charles W. Bachman
/s/John J. Alexander Director January 31,1997
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John J. Alexander
/s/R. John Fletcher Director January 31,1997
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R. John Fletcher
/s/Roland Pampel Director January 31,1997
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Roland Pampel
/s/Allyn C. Woodward, Jr. Director January 31,1997
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Allyn C. Woodward, Jr.
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- ----------------------------- Director January _ ,1997
William H. D. Goddard.
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