Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ALLAIRE CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 41-1830792
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
ONE ALEWIFE CENTER, CAMBRIDGE, MASSACHUSETTS 02140
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
BRIGHT TIGER TECHNOLOGIES, INC.
1996 STOCK OPTION PLAN
(FULL TITLE OF THE PLAN)
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DAVID J. ORFAO
President and Chief Executive Officer
Allaire Corporation
One Alewife Center
Cambridge, Massachusetts 02140
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(617) 761-2000
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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WITH COPIES TO:
Robert L. Birnbaum, Esquire
William R. Kolb, Esquire
Foley, Hoag & Eliot LLP
One Post Office Square
Boston, Massachusetts 02109
(617) 832-1000
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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 15,774(1) $12.04(2) $189,918.96(2) $53.00
($.01 par value) shares
(1) Represents shares of Allaire common stock issuable upon exercise
of outstanding stock options granted pursuant to the Bright Tiger
Technologies, Inc. 1996 Stock Option Plan as of May 7, 1999.
(2) Calculated pursuant to Rule 457(h)(1) based on the weighted
average xeercise price per share of the options.
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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) Allaire's Prospectus dated January 22, 1999 included in
Allaire's registration statement on Form S-1, File Number 333-68639, as
declared effective by the Commission on January 22, 1999;
(b) the description of Allaire's common stock contained in the
registration statement on Form 8-A filed with the Commission on January 15,
1999 under Section 12 of the Securities Exchange Act of 1934, including any
amendment or report filed for the purpose of updating such description;
(c) Allaire's Annual Report on Form 10-K for the fiscal year ended
on December 31, 1998, as filed with the Commission on March 31, 1999; and
(d) Allaire's Current Report on Form 8-K as filed with the
Commission on April 27, 1999.
All documents subsequently filed by Allaire pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, 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 Allaire Corporation by Foley, Hoag & Eliot LLP, Boston,
Massachusetts.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law affords a
Delaware corporation the power to indemnify its present and former directors
and officers under certain conditions. Article Six of Allaire's Amended and
Restated Certificate of Incorporation provides that Allaire will indemnify
each person who at any time is, or has been, a director or officer of Allaire
and was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he or she is or
was a director or officer of Allaire or is or was serving at our request as a
director, officer, employee, or agent of another corporation, partnership,
joint venture, trust or other
enterprise against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement incurred in connection with any such action, suit
or proceeding, to the maximum extent permitted by the Delaware General
Corporation Law, as the same exists or may hereafter be amended. No amendment
to or repeal of the provisions of Article Six of the Amended and Restated
Certificate of Incorporation will deprive a director or officer of the
benefit thereof with respect to any act or failure occurring prior to such
amendment or repeal.
Section 102(b)(7) of the Delaware General Corporation Law gives a
Delaware corporation the power to adopt a charter provision eliminating or
limiting the personal liability of directors to the corporation or its
stockholders for breach of fiduciary duty as directors, provided that such
provision may not eliminate or limit the liability of directors for: (a) any
breach of the director's duty of loyalty to the corporation or its
stockholders; (b) any acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (c) any payment of a
dividend or approval of a stock purchase that is illegal under Section 174 of
the Delaware General Corporation Law; or (d) any transaction from which the
director derived an improper personal benefit.
Article Eight of Allaire's Amended and Restated Certificate of
Incorporation provides that to the maximum extent permitted by the Delaware
General Corporation Law, no director will be personally liable to Allaire or
to any of its stockholders for monetary damages arising out of such
director's breach of fiduciary duty as a director. No amendment to or repeal
of the provisions of Article Eight will apply to or have any effect on the
liability or the alleged liability of any director with respect to any act or
failure to act of such director occurring prior to such amendment or repeal.
A principal effect of Article Eight is to limit or eliminate the potential
liability of Allaire's directors for monetary damages arising from breaches
of their duty of care, unless the breach involves one of the four exceptions
described in (a) through (d) above.
Section 145 of the Delaware General Corporation Law also affords a
Delaware corporation the power to obtain insurance on behalf of its directors
and officers against liabilities incurred by them in those capacities.
Allaire has obtained a directors' and officers' liability and company
reimbursement liability insurance policy that: (a) insures directors and
officers against losses (above 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 Allaire against losses (above a
deductible amount) arising from any such claims, but only if Allaire is
required or permitted to indemnify such directors or officers for such losses
under statutory or common law or under provisions of its Amended and Restated
Certificate of Incorporation or Amended and Restated By-Laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Amended and Restated Certificate of Incorporation of Allaire
Corporation (filed as Exhibit 3.3 to Allaire's registration statement
on Form S-1, File Number 333-68639, and incorporated herein by
reference).
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4.2 Amended and Restated By-Laws of Allaire Corporation (filed as Exhibit
3.5 to Allaire's registration statement on Form S-1, File Number
333-68639, and incorporated herein by reference).
4.3 Bright Tiger Technologies, Inc. 1996 Stock Incentive Plan, as amended.
5.1 Opinion of Foley, Hoag & Eliot LLP.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.2 Consent of Foley, Hoag & Eliot LLP (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 will be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time will 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. 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.
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material
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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 with or furnished to
the Commission by the registrant pursuant to Section 13 or 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 will 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.
(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
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.
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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 City of Cambridge, Commonwealth of
Massachusetts, on this 12th day of May, 1999.
ALLAIRE CORPORATION
By: /S/ DAVID J. ORFAO
David J. Orfao
President and Chief
Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints David J. Orfao and David A. Gerth, 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 which they, or any of them, 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 any substitute or substitutes for any or all of them, 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
/S/ JOSEPH J. ALLAIRE Chairman of the Board of Directors, May 12, 1999
--------------------- Chief Technology Officer and
Joseph J. Allaire Executive Vice President, Products
/S/ DAVID J. ORFAO President, Chief Executive Officer May 12, 1999
------------------ and Director (principal executive officer)
David J. Orfao
/S/ DAVID A. GERTH Vice President, Finance and Operations, May 12, 1999
------------------ Treasurer and Chief Financial Officer
David A. Gerth (principal financial and accounting officer)
/S/ JONATHAN A. FLINT Director May 12, 1999
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Jonathan A. Flint
/S/ JOHN J. GANNON Director May 12, 1999
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John J. Gannon
/S/ THOMAS A. HERRING Director May 12, 1999
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Thomas A. Herring
/S/ MITCHELL KAPOR Director May 12, 1999
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Mitchell Kapor
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EXHIBIT INDEX
Exhibit
No. DESCRIPTION
4.1 Amended and Restated Certificate of
Incorporation of Allaire Corporation (filed
as Exhibit 3.3 to Allaire's registration
statement on Form S-1, File Number
333-68639, and incorporated herein by
reference).
4.2 Amended and Restated By-Laws of Allaire
Corporation (filed as Exhibit 3.5 to
Allaire's registration statement on Form
S-1, File Number 333-68639, and incorporated
herein by reference).
4.3 Bright Tiger Technologies, Inc. Stock Option
Plan, as amended.
5.1 Opinion of Foley, Hoag & Eliot LLP.
23.1 Consent of PricewaterhouseCoopers LLP,
independent accountants.
23.2 Consent of Foley, Hoag & Eliot LLP (included
in Exhibit 5.1).
24.1 Power of Attorney (contained on the
signature page).