AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 24, 1999
REGISTRATION NO. 333-86563
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2 TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ALLAIRE CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 7372 41-1830792
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or organization) Classification Code Number) Identification Number)
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ONE ALEWIFE CENTER
CAMBRIDGE, MASSACHUSETTS 02140
(617) 761-2000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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DAVID J. ORFAO
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ALLAIRE CORPORATION
ONE ALEWIFE CENTER
CAMBRIDGE, MASSACHUSETTS 02140
(617) 761-2000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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COPIES TO:
ROBERT L. BIRNBAUM, ESQ. WILLIAM J. SCHNOOR, JR., ESQ.
WILLIAM R. KOLB, ESQ. BRIAN D. GOLDSTEIN, ESQ.
RICHARD G. COSTELLO, ESQ. TESTA, HURWITZ & THIBEAULT, LLP
FOLEY, HOAG & ELIOT LLP 125 High Street
One Post Office Square Boston, Massachusetts 02110
Boston, Massachusetts 02109 (617) 248-7000
(617) 832-1000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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Part I of the Registration Statement has been intentionally omitted because
this Amendment No. 2 does not effect any changes to the Prospectus. The sole
purpose of this Amendment No. 2 is to file Exhibits 1.1 and 5.1.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses in connection with the
issuance and distribution of the securities being registered. All amounts shown
are estimates except the Securities and Exchange Commission registration fee,
the National Association of Securities Dealers, Inc. filing fee and the Nasdaq
National Market listing fee.
PAYABLE
BY THE
COMPANY
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Securities and Exchange Commission registration fee....................................... $ 37,784
National Association of Securities Dealers, Inc. filing fee............................... 14,092
Nasdaq National Market listing fee........................................................ 17,500
Printing and engraving expenses........................................................... 100,000
Transfer agent fees....................................................................... 5,000
Accounting fees and expenses.............................................................. 75,000
Legal fees and expenses................................................................... 225,000
Blue Sky fees and expenses (including related legal fees)................................. 5,000
Miscellaneous............................................................................. 20,624
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Total..................................................................................... $ 500,000
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ITEM 14. 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 Sixth of the Certificate provides that Allaire
shall indemnify each person who at any time is, or shall have 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 the
request of Allaire as a director, officer, trustee of, or in a similar capacity
with, 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 Sixth of the Certificate shall 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 (i) any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) any acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) any payment of a dividend or approval of a stock
purchase that is illegal
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under Section 174 of the Delaware General Corporation Law or (iv) any
transaction from which the director derived an improper personal benefit.
Article Seventh of the Certificate provides that to the maximum extent permitted
by the Delaware General Corporation Law, no director of Allaire shall 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 of
Allaire. No amendment to or repeal of the provisions of Article Seventh shall
apply to or have any effect on the liability or the alleged liability of any
director of Allaire with respect to any act or failure to act of such director
occurring prior to such amendment or repeal. A principal effect of such Article
Seventh 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 (i) through (iv) 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
procured a directors' and officers' liability and company reimbursement
liability insurance policy that (a) insures directors and officers of Allaire
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 its By-Laws.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
The following information is furnished with regard to all securities sold by
Allaire since February 1996 which were not registered under the Securities Act.
(A) ISSUANCES OF COMMON STOCK BY ALLAIRE MINNESOTA.
From February 1996 through January 1997, Allaire Corp., a Minnesota
corporation ("Allaire Minnesota"), issued and sold an aggregate of 2,000,000
shares of its Common Stock for consideration valued at $51,690.
(B) ISSUANCES OF PREFERRED STOCK BY ALLAIRE MINNESOTA.
From June 1996 through March 1997, Allaire Minnesota issued and sold an
aggregate of 56,557 shares of its Series A Convertible Preferred Stock, for
aggregate consideration of $255,165. From June 1996 through March 1997, Allaire
Minnesota also issued and sold an aggregate of 514,306 shares of its Series B
Convertible Preferred Stock, for aggregate consideration of $2,324,664. In
December 1996, Allaire Minnesota issued and sold an aggregate of 84,600 shares
of its Series C Preferred Stock, for aggregate consideration of $499,986.
(C) GRANTS AND EXERCISES OF ALLAIRE MINNESOTA'S STOCK OPTIONS.
From June 1996 through April 1997, Allaire Minnesota issued options to
purchase an aggregate of 1,086,800 shares of its Common Stock, and sold 1,250
shares of its Common Stock pursuant to the exercise of such options for
aggregate consideration of $1,250.
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On April 25, 1997 Allaire Minnesota was reincorporated as a Delaware
corporation through the merger of Allaire Minnesota into Allaire. Pursuant to
the reincorporation merger, each share of Common Stock of Allaire Minnesota was
automatically changed and converted into two shares of Common Stock of Allaire.
Each share of Series A, B and C Convertible Preferred Stock of Allaire Minnesota
was automatically changed and converted into one share of the corresponding
series of Allaire's Convertible Preferred Stock. Each share of Allaire's Series
A, B and C Convertible Preferred Stock issued pursuant to the reincorporation
merger automatically changed and converted into two shares of Allaire's Common
Stock upon the closing of Allaire's initial public offering in January 1999.
Also pursuant to the reincorporation merger, each option to purchase one share
of Common Stock of Allaire Minnesota was automatically converted and changed
into an option to purchase two shares of Allaire's Common Stock.
(D) ISSUANCES OF COMMON STOCK BY ALLAIRE.
From January 1998 through April 22, 1999, Allaire issued and sold 1,438,019
shares of its Common Stock for aggregate consideration of $546,245.
In April 1999, in order to acquire Bright Tiger Technologies Inc., Allaire
issued and sold 288,583 shares of its Common Stock.
In June 1999, in order to acquire Live Software, Inc., Allaire issued and
sold 528,376 shares of its Common Stock.
(E) ISSUANCES OF PREFERRED STOCK BY ALLAIRE
On December 7, 1998, Allaire issued and sold 31,250 shares of Series A
Convertible Preferred Stock for aggregate consideration of $500,000. Each of
these 31,250 shares of Series A Convertible Stock automatically changed and
converted into one share of Allaire's Common Stock upon the closing of Allaire's
initial public offering.
In February 1998, Allaire issued and sold 656 shares of Series A Convertible
Preferred Stock, for aggregate consideration of $5,250. Each of these 656 shares
of Series A Convertible Preferred Stock automatically changed and converted into
one share of Allaire's Common Stock upon the closing of Allaire's initial public
offering. In May and June 1997, Allaire issued and sold 2,336,909 shares of
Series D Convertible Preferred Stock, for aggregate consideration of $9,347,636.
Each share of Series D Convertible Preferred Stock automatically changed and
converted into one share of the Company Common Stock upon the closing of
Allaire's initial public offering.
(F) GRANTS OF ALLAIRE'S STOCK OPTIONS.
From April 1997 through April 22, 1999, Allaire granted options to purchase
an aggregate of 1,911,610 shares of its Common Stock, exercisable at a weighted
average exercise price of $15.17 per share.
The issuances described in this Item 15 were made in reliance upon the
exemption from registration set forth in Section 4(2) of the Securities Act
relating to sales by an issuer not involving any public offering. None of the
foregoing transactions involved a distribution or public offering. No
underwriters were engaged in connection with the foregoing issuances of
securities, and no underwriting discounts or commissions were paid.
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ITEM 16. EXHIBITS AND FINANCIAL SCHEDULES.
(A) EXHIBITS
1.1 Underwriting Agreement
+3.1 Amended and Restated Certificate of Incorporation of Allaire
+3.2 Amended and Restated By-Laws of Allaire
+4.1 Specimen certificate for the Common Stock of Allaire
5.1 Opinion of Foley, Hoag & Eliot LLP
+10.1 1997 Stock Incentive Plan as amended
+10.2 1998 Stock Incentive Plan
+10.3 1998 Employee Stock Purchase Plan
+10.4 Option Agreement for David J. Orfao
+10.5 Form of Option Agreement for other executive officers
+10.6 Office Lease Agreement between Allaire and One Alewife Center Realty Trust,
dated November 5, 1997
+10.7 Lease Agreement between Allaire and CambridgePark Two, L.P., dated May 21, 1998
+10.8 Loan and Security Agreement between Allaire and Silicon Valley Bank, dated
March 26, 1998
+10.9 Negative Pledge Agreement between Allaire and Silicon Valley Bank, dated March
26, 1998
+10.10 Loan Modification Agreement between Allaire and Silicon Valley Bank, dated
August 6, 1998
+10.11 Loan Modification Agreement between Allaire and Silicon Valley Bank, dated
December 9, 1998
+10.12 Senior Loan and Security Agreement between Allaire and Phoenix Leasing
Incorporated, dated May 1, 1998
+10.13 Warrant Agreement between Allaire and Comdisco, Inc., dated August 21, 1998
+10.14 Warrant Agreement between Allaire and Gregory Stento, dated August 21, 1998
+10.15 Warrant Agreement between Allaire and Polaris Venture Partners, L.P., dated
March 7, 1997
+10.16 Warrant Agreement between Allaire and Polaris Venture Partners Founders' Fund,
L.P., dated March 7, 1997
+10.17 Amended and Restated Registration Rights Agreement, dated May 15, 1997
+10.18 Waiver and Amendment No. 1 to Amended and Restated Registration Rights
Agreement, dated December 7, 1998
+10.19 Letter of Offer of Employment from Allaire to David J. Orfao, dated December
23, 1996
+10.20 Contribution and Restricted Stock Purchase Agreement between Allaire and Yesler
Software, Inc., dated July 14, 1998
+10.21 Working Capital Line of Credit Letter from Polaris Ventures Partners, L.P., and
Polaris Venture Partners Founders' Fund, L.P., dated December 4, 1998
10.22 Agreement and Plan of Merger, dated as of April 2, 1999, by and among Allaire,
Bengal Acquisition Corp. and Bright Tiger Technologies, Inc. (included as
Exhibit 2.1 to Allaire's Current Report on Form 8-K filed with the Securities
and Exchange Commission on April 27, 1999 and incorporated herein by
reference.)
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++11.1 Statement re computation of unaudited net loss per share and pro forma net loss
per share
++21.1 Subsidiaries of Allaire Corporation
23.2 Consent of Foley, Hoag & Eliot LLP (included in Exhibit 5.1)
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+ Included in Allaire's Registration Statement on Form S-1 (File No.
333-68639) and
incorporated herein by reference.
++ Previously Filed.
(B) FINANCIAL STATEMENT SCHEDULES
II--Valuation and Qualifying Accounts
All other schedules are omitted because they are not applicable or the
required information is shown in the financial statements or the notes thereto.
ITEM 17. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (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.
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;
(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 20 percent change in the maximum
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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.
(2) 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 therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment No. 2 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Boston, Massachusetts, on
the 24th day of September, 1999.
ALLAIRE CORPORATION
BY: /s/ DAVID J. ORFAO
-----------------------------------------
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 Amendment
No. 2 has been signed by the following persons in the capacities and on the
dates indicated.
In accordance with 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
- ------------------------------ ------------------------- -------------------
Chairman of the Board, September 24, 1999
/s/ JOSEPH J. ALLAIRE Chief Technology Officer
- ------------------------------ and Executive Vice
Joseph J. Allaire President, Products
President, Chief September 24, 1999
/s/ DAVID J. ORFAO Executive Officer and
- ------------------------------ Director (principal
David J. Orfao executive officer)
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SIGNATURE TITLE DATE
- ------------------------------ ------------------------- -------------------
Vice President, Finance September 24, 1999
and Operations, Treasurer
/s/ DAVID A. GERTH and Chief Financial
- ------------------------------ Officer (principal
David A. Gerth financial and accounting
officer)
* Director September 24, 1999
- ------------------------------
Jonathan A. Flint
* Director September 24, 1999
- ------------------------------
John J. Gannon
* Director September 24, 1999
- ------------------------------
Thomas A. Herring
* Director September 24, 1999
- ------------------------------
Mitchell Kapor
* By David J. Orfao as
attorney-in-fact
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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1.1 Underwriting Agreement
+3.1 Amended and Restated Certificate of Incorporation of Allaire
+3.2 Amended and Restated By-Laws of Allaire
+4.1 Specimen certificate for the Common Stock of Allaire
5.1 Opinion of Foley, Hoag & Eliot LLP
+10.1 1997 Stock Incentive Plan as amended
+10.2 1998 Stock Incentive Plan
+10.3 1998 Employee Stock Purchase Plan
+10.4 Option Agreement for David J. Orfao
+10.5 Form of Option Agreement for other executive officers
+10.6 Office Lease Agreement between Allaire and One Alewife Center Realty Trust, dated November 5, 1997
+10.7 Lease Agreement between Allaire and CambridgePark Two, L.P., dated May 21, 1998
+10.8 Loan and Security Agreement between Allaire and Silicon Valley Bank, dated March 26, 1998
+10.9 Negative Pledge Agreement between Allaire and Silicon Valley Bank, dated March 26, 1998
+10.10 Loan Modification Agreement between Allaire and Silicon Valley Bank, dated August 6, 1998
+10.11 Loan Modification Agreement between Allaire and Silicon Valley Bank, dated December 9, 1998
+10.12 Senior Loan and Security Agreement between Allaire and Phoenix Leasing Incorporated, dated May 1,
1998
+10.13 Warrant Agreement between Allaire and Comdisco, Inc., dated August 21, 1998
+10.14 Warrant Agreement between Allaire and Gregory Stento, dated August 21, 1998
+10.15 Warrant Agreement between Allaire and Polaris Venture Partners, L.P., dated March 7, 1997
+10.16 Warrant Agreement between Allaire and Polaris Venture Partners Founders' Fund, L.P., dated March 7,
1997
+10.17 Amended and Restated Registration Rights Agreement, dated May 15, 1997
+10.18 Waiver and Amendment No. 1 to Amended and Restated Registration Rights Agreement, dated December 7,
1998
+10.19 Letter of Offer of Employment from Allaire to David J. Orfao, dated December 23, 1996
+10.20 Contribution and Restricted Stock Purchase Agreement between Allaire and Yesler Software, Inc.,
dated July 14, 1998
+10.21 Working Capital Line of Credit Letter from Polaris Ventures Partners, L.P., and Polaris Venture
Partners Founders' Fund, L.P., dated December 4, 1998
EXHIBIT NO. DESCRIPTION
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10.22 Agreement and Plan of Merger, dated as of April 2, 1999, by and among Allaire, Bengal Acquisition
Corp. and Bright Tiger Technologies, Inc. (included as Exhibit 2.1 to Allaire's Current Report on
Form 8-K filed with the Securities and Exchange Commission on April 27, 1999 and incorporated herein
by reference.)
++11.1 Statement re computation of unaudited net loss per share and pro forma net loss per share
++21.1 Subsidiaries of Allaire Corporation
23.2 Consent of Foley, Hoag & Eliot LLP (included in Exhibit 5.1)
- ------------------------
+ Included in Allaire's Registration Statement on Form S-1 (File No.
333-68639) and
incorporated herein by reference.
++ Previously filed.