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As filed with the Securities and Exchange Commission on July 2, 1998
Registration No. 333-__________
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________
FORTE SOFTWARE, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 94-3131872
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
1800 HARRISON STREET
OAKLAND, CA 94612
(Address of principal executive offices) (Zip Code)
___________________
FORTE SOFTWARE, INC.
1997 STOCK OPTION PLAN
WRITTEN COMPENSATION AGREEMENTS
FOR CHRISTOS M. COTSAKOS AND THOMAS A. JERMOLUK
(Full title of the Plans)
BOB L. COREY
SENIOR VICE PRESIDENT, FINANCE AND ADMINISTRATION,
CHIEF FINANCIAL OFFICER AND SECRETARY
FORTE SOFTWARE, INC.
1800 HARRISON STREET
OAKLAND, CA 94612
(Name and address of agent for service)
_________________________________
(Telephone number, including area code, of agent for service)
(510) 869-3400
CALCULATION OF REGISTRTAION FEE
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Title of Proposed Maximum Proposed Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered (1) per Share (2) Price (2) Fee
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<S> <C> <C> <C> <C>
1997 STOCK OPTION PLAN
Options 1,578,990 N/A N/A N/A
Common Stock (par value $.001) 1,578,990 shares $5.75 $9,079,192.50 $2,678.36
Written Compensation Agreements
for Christos M. Cotsakos and
Thomas A. Jermoluk
Options 13,000 N/A N/A N/A
Common Stock (par value $.001) 13,000 shares $5.75 $74,750.00 $22.05
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1997 Stock Option Plan and the
Written Compensation Agreements for Christos M. Cotsakos and Thomas A.
Jermoluk by reason of any stock dividend, stock split, recapitalization or
other similar transaction effected without the receipt of consideration
which results in an increase in the number of the outstanding shares of
Common Stock of Forte Software, Inc.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the average of the high
and low prices per share of Common Stock of Forte Software, Inc. on June
24, 1998.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Forte Software, Inc. (the "Registrant") hereby incorporates by reference
into this Registration Statement the following documents previously filed with
the Securities and Exchange Commission (the "SEC"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
March 31, 1998, as filed with the SEC on June 26, 1998, and
(b) The description of the Registrant's outstanding Common Stock contained
in the Registrant's Registration Statement No. 0-27838 on Form 8-A
filed with the SEC on February 28, 1996, pursuant to Section 12 of the
1934 Act, including any amendment or report filed for the purpose of
updating such description.
All reports and definitive proxy or information statements filed pursuant
to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a 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
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law authorizes a court to
award or a corporation's Board of Directors to grant indemnification to
directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the 1933 Act. The
Registrant's Bylaws provide for mandatory indemnification of its directors and
officers and permissible indemnification of employees and other agents to the
maximum extent permitted by the Delaware General Corporation Law. The
Registrant's Certificate of Incorporation provides that, pursuant to Delaware
law, its directors shall not be liable for monetary damages for breach of their
fiduciary duty as directors to the Registrant and its stockholders. This
provision in the Certificate of Incorporation does not eliminate the fiduciary
duty of the directors, and, in appropriate circumstances, equitable remedies
such as injunctive or other forms of non-monetary relief will remain available
under Delaware law. In addition, each director will continue to be subject to
liability for breach of the director's duty of loyalty to the Registrant for
acts or omissions not in good faith or involving intentional misconduct, for
knowing violations of law, for actions leading to improper personal benefit to
the director and for payment of dividends or approval of stock repurchases or
redemptions that are unlawful under Delaware law. The provision also does not
affect a director's responsibilities under any other law, such as the federal
securities laws or state or federal environmental laws. The Registrant has
entered into Indemnification Agreements with its officers and directors. The
Indemnification Agreements provide the Registrant's officers and directors with
further indemnification to the maximum extent permitted by the Delaware General
Corporation Law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
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ITEM 8. EXHIBITS
EXHIBIT NUMBER EXHIBIT
4 Instrument Defining Rights of Stockholders. Reference is made to
Registrant's Registration Statement No. 0-27838 on Form 8-A,
which is incorporated herein by reference pursuant to Item 3(b)
of this Registration Statement.
5 Opinion and consent of Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian, LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-3 of this
Registration Statement.
ITEM 9. UNDERTAKINGS
A. 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 1933 Act, (ii) to reflect in the prospectus any facts
or events arising after the effective date of this 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 this
Registration Statement and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement; PROVIDED, however, that clauses (1)(i) and (1)(ii) shall
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 SEC by the Registrant pursuant to Section 13 or Section 15(d)
of the 1934 Act that are incorporated by reference in this Registration
Statement; (2) that for the purpose of determining any liability under the 1933
Act 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 and (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 Registrant's 1997 Stock Option Plan and/or the Written
Compensation Agreements for Christos M. Cotsakos and Thomas A. Jermoluk.
B. The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is
incorporated by reference in this Registration Statement 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.
C. Insofar as indemnification for liabilities arising under the 1933
Act may be permitted to directors, officers or controlling persons of the
Registrant pursuant to the indemnification provisions summarized in Item 6 or
otherwise, the Registrant has been advised that, in the opinion of the SEC, such
indemnification is against public policy as expressed in the 1933 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 1933 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, as
amended, 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 Oakland, State of California on this 26th day of
June, 1998.
FORTE SOFTWARE, INC.
By: /s/ Martin J. Sprinzen
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Martin J. Sprinzen
Chairman of the Board,
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Forte Software,
Inc., a Delaware corporation, do hereby constitute and appoint Martin J.
Sprinzen and Bob L. Corey, and either of them, the lawful attorneys-in-fact
and agents with full power and authority to do any and all acts and things
and to execute any and all instruments which said attorneys and agents, and
either one of them, determine may be necessary or advisable or required to
enable said corporation to comply with the Securities Act of 1933, as
amended, and any rules or regulations or requirements of the Securities and
Exchange Commission in connection with this Registration Statement. Without
limiting the generality of the foregoing power and authority, the powers
granted include the power and authority to sign the names of the undersigned
officers and directors in the capacities indicated below to this Registration
Statement, to any and all amendments, both pre-effective and post-effective,
and supplements to this Registration Statement, and to any and all
instruments or documents filed as part of or in conjunction with this
Registration Statement or amendments or supplements thereof, and each of the
undersigned hereby ratifies and confirms all that said attorneys and agents,
or either one of them, shall do or cause to be done by virtue hereof. This
Power of Attorney may be signed in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power
of Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
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Signature Title Date
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<S> <C> <C>
/s/ Martin J. Sprinzen Chairman of the Board, June 26, 1998
- --------------------------- President and Chief Executive Officer
Martin J. Sprinzen (Principal Executive Officer)
/s/ Bob L. Corey Senior Vice President, Finance and June 26, 1998
- --------------------------- Administration, Chief Financial Officer
Bob L. Corey (Principal Financial and Accounting Officer)
and Secretary
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/s/ Christos M. Cotsakos Director June 26, 1998
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Christos M. Cotsakos
/s/ Thomas A. Jermoluk Director June 26, 1998
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Thomas A. Jermoluk
/s/ William H. Younger, Jr. Director June 26, 1998
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William H. Younger, Jr.
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II-4
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EXHIBIT INDEX
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EXHIBIT NUMBER EXHIBIT
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4 Instrument Defining Rights of Stockholders. Reference is
made to Registrant's Registration Statement No. 0-27838 on
Form 8-A, which is incorporated herein by reference pursuant
to Item 3(b) of this Registration Statement.
5 Opinion and consent of Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian, LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-3 of this
Registration Statement.
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EXHIBIT 5
June 26, 1998
Forte Software, Inc.
1800 Harrison Street
Oakland, CA 94612
Re: Forte Software, Inc. Registration Statement
for Offering of 1,591,990 Shares of Common Stock
Ladies and Gentlemen:
We refer to your registration on Form S-8 (the "Registration Statement")
under the Securities Act of 1933, as amended, of (i) 1,578,990 shares of
Common Stock under the Company's 1997 Stock Option Plan and (ii) 13,000
shares of Common Stock available for issuance under the Written Compensation
Agreements for Christos M. Cotsakos and Thomas A. Jermoluk. We advise you
that, in our opinion, when such shares have been issued and sold pursuant to
the applicable provisions of the 1997 Stock Option Plan and the Written
Compensation Agreements for Christos M. Cotsakos and Thomas A. Jermoluk and
in accordance with the Registration Statement, such shares will be validly
issued, fully paid and nonassessable shares of the Company's Common Stock.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Gunderson Dettmer Stough
Villeneuve Franklin & Hachigian, LLP
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EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm in the Registration Statement (Form
S-8) pertaining to the Forte Software, Inc. 1997 Stock Option Plan and
Written Compensation Agreements for Christos M. Cotsakos and Thomas A.
Jermoluk and to the incorporation by reference therein of our report dated
April 20, 1998, with respect to the consolidated financial statements and
schedule of Forte Software, Inc. included in its Annual Report (Form 10-K)
for the year ended March 31, 1998, filed with the Securities and Exchange
Commission.
Walnut Creek, California
June 26, 1998
