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 (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
ONE ALEWIFE CENTER, CAMBRIDGE, MASSACHUSETTS 02140
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
LIVE SOFTWARE, INC. 1999 STOCK OPTION/STOCK ISSUANCE PLAN
LIVE SOFTWARE, INC. STOCK OPTION AGREEMENT WITH MICHAEL HOGARTH
LIVE SOFTWARE, INC. STOCK OPTION AGREEMENT WITH JAMES DELAPA
(FULL TITLES OF THE PLANS)
--------------------
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 Amount
Securities Amount Maximum Aggregate of
to be to be Offering Price Offering Registration
Registered Registered Per Share Price Fee
- ---------------------------------------------------------------------------------
Common Stock 19,048 shares(1) $4.44(2) $84,573.12(2) $23.51
($.01 par value)
Common Stock 845 shares(3) $.43(2) $363.35(2) $.10
($.01 par value)
Common Stock 1690 shares(4) $.43(2) $726.70(2) $.20
($.01 par value)
Totals 21,583 shares $85,663.17 $24.00
(1) Represents shares of Allaire common stock issuable upon exercise of
outstanding stock options granted pursuant to the Live Software, Inc. 1999 Stock
Option/Stock Issuance Plan as of June 25, 1999.
(2) Calculated pursuant to Rule 457(h)(1) based on the weighted average
exercise price per share of the options.
(3) Represents shares of Allaire common stock issuable upon exercise of
outstanding stock options granted pursuant to the Stock Option Agreement
between Live Software, Inc. and Michael Hogarth dated as of October 1, 1998.
(4) Represents shares of Allaire common stock issuable upon exercise of
outstanding stock options granted pursuant to the Stock Option Agreement
between Live Software, Inc. and Jim DeLapa dated as of January 1, 1999.
-------------------------------------------
AVAILABILITY OF DOCUMENTS INCORPORATED BY REFERENCE
This document constitutes part of a prospectus under Section 10(a) of
the Securities Act. The Section 10(a) prospectus incorporates by reference
certain other documents listed in Item 3 of Part II of the registration
statement to which this prospectus relates. These other documents include:
- - the latest annual report that we filed under Section 13 or 15(d) of the
Exchange Act, or the latest prospectus that we filed under Rule 424(b)
under the Securities Act that contained audited financial statements
for the latest fiscal year for which we have filed financial
statements; and
- - all other quarterly, current and other reports that we have filed under
Section 13 or 15(d) of the Exchange Act since the end of the latest
fiscal year covered by such annual report or prospectus.
We are also required to deliver certain other documents to you under
Rule 428(b) under the Securities Act. All of these documents are available to
you without charge upon written or oral request. To obtain a copy of any or all
of these documents, you should call our Chief Financial Officer at (617)
761-2000 or write to the following address:
Allaire Corporation
One Alewife Center
Cambridge, Massachusetts 02140
Attention: Chief Financial Officer
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;
(d) Allaire's Current Report on Form 8-K as filed with the Commission
on April 27, 1999;
(e) Allaire's Quarterly Report on Form 10-Q, as filed with the
Commission on May 17, 1999; and
(f) Allaire's Current Report on Form 8-K/A, as filed with the
Commission on June 15, 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).
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 Live Software, Inc. 1999 Stock Option/Stock Issuance Plan.
4.4 Stock Option Agreement between Live Software, Inc. and Michael Hogarth,
dated as of October 1, 1998.
4.5 Stock Option Agreement between Live Software, Inc. and James DeLapa,
dated as of
January 1, 1999.
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 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.
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
23rd day of July, 1999.
ALLAIRE CORPORATION
By: /S/ DAVID J. ORFAO
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David J. Orfao
President and Chief Executive Officer
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, July 23, 1999
---------------------- Chief Technology Officer and
Joseph J. Allaire Executive Vice President, Products
/S/ DAVID J. ORFAO President, Chief Executive Officer July 23, 1999
---------------------- and Director(principal executive
David J. Orfao officer)
/S/ DAVID A. GERTH Vice President, Finance and July 23, 1999
---------------------- Operations, Treasurer and Chief
David A. Gerth Financial Officer (principal
financial and accounting officer)
/S/ JONATHAN A. FLINT Director July 23, 1999
-----------------------
Jonathan A. Flint
/S/ JOHN J. GANNON Director July 23, 1999
-----------------------
John J. Gannon
/S/ THOMAS A. HERRING Director July 23, 1999
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Thomas A. Herring
/S/ MITCHELL KAPOR Director July 23, 1999
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Mitchell Kapor
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 Live Software, Inc. 1999 Stock Option/Stock Issuance
Plan.
4.4 Stock Option Agreement between Live Software, Inc.
and Michael Hogarth, dated as of October 1, 1998.
4.5 Stock Option Agreement between Live Software, Inc.
and James DeLapa, dated as of January 1, 1999.
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).