<PAGE> 1
As filed with the Securities and Exchange Commission on August 24, 1999
Registration No. 333-_______________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------
CONTINUUS SOFTWARE CORPORATION
(Exact Name Of Registrant As Specified In Its Charter)
---------------------------
<TABLE>
<S> <C> <C>
DELAWARE 7372 43-1070080
(State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification No.)
Incorporation or Organization) Classification Code Number)
</TABLE>
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108 PACIFICA
IRVINE, CALIFORNIA 92618
(949) 453-2200
(Address Of Principal Executive Offices)
---------------------------
EMPLOYEE STOCK OPTION PLAN;
1997 EQUITY INCENTIVE PLAN; AND
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of The Plans)
---------------------------
JOHN R. WARK
PRESIDENT AND CHIEF EXECUTIVE OFFICER
CONTINUUS SOFTWARE CORPORATION
108 PACIFICA
IRVINE, CALIFORNIA 92618
(949) 453-2200
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
---------------------------
COPIES TO:
D. BRADLEY PECK, ESQ.
COOLEY GODWARD LLP
4365 EXECUTIVE DRIVE, SUITE 1100
SAN DIEGO, CALIFORNIA 92121
(858) 550-6000
---------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING PRICE AMOUNT OF REGISTRATION
BE REGISTERED REGISTERED SHARE (1) (1) FEE
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par
value $.001 3,848,039 $0.33-$8.00 $13,967,481 $3,882.96
================================================================================================================================
</TABLE>
<PAGE> 2
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457. The price per share and
aggregate offering price are based upon (a) the actual exercise price
for shares subject to outstanding stock options previously granted
under the Registrant's Employee Stock Option Plan and 1997 Equity
Incentive Plan; and (b) the average of the high and low sales prices of
Registrant's Common Stock on August 19, 1999, as reported on the Nasdaq
National Market, for shares issuable under the Registrant's 1997 Equity
Incentive Plan and 1999 Employee Stock Purchase Plan. The following
chart shows the calculation of the registration fee:
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
Offering Price Aggregate
Type of Shares Number of Shares Per Share Offering Price
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Common Stock issuable pursuant to outstanding 6,225 $0.33 $2,054
options under the Employee Stock Option Plan
- -------------------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to outstanding 7,547 $0.95 $7,170
options under the Employee Stock Option Plan
- -------------------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to outstanding 1,016,180 $1.54 $1,564,917
options under the Employee Stock Option Plan
- -------------------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to outstanding 847,922 $1.99 $1,687,365
options under the Employee Stock Option Plan
or the 1997 Equity Incentive Plan
- -------------------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to outstanding 232,847 $3.98 $926,731
options under the 1997 Equity Incentive Plan
- -------------------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to outstanding 19,582 $4.64 $90,860
options under the 1997 Equity Incentive Plan
- -------------------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to outstanding 228,972 $6.63 $1,518,084
options under the 1997 Equity Incentive Plan
- -------------------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to outstanding 159,053 $8.00 $1,272,424
options under the 1997 Equity Incentive Plan
- -------------------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to the 1997 1,079,711 $5.1875 $5,601,001
Equity Incentive Plan
- -------------------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to the 1999 250,000 $5.1875 $1,296,875
Employee Stock Purchase Plan
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Continuus Software Corporation, (the
"Company" or the "Registrant"), with the Securities and Exchange Commission are
incorporated by reference into this Registration Statement:
(a) The prospectus contained in the Form S-1 Registration Statement (No.
333-76893) filed by the Company with the Securities and Exchange Commission (the
"Commission") on April 23, 1999, as amended through the date hereof (the "Form
S-1").
(b) A description of the Registrant's Common Stock which is contained in
the Form S-1, including any amendment or reports filed for the purpose of
updating.
(c) The Company's Quarterly Report on Form 10-Q, filed on August 16,
1999 pursuant to Sections 13 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act 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 herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the Delaware General Corporation Law, the
Registrant has broad powers to indemnify its directors and officers against
liabilities they may incur in such capacities, including liabilities under the
Securities Act.
The Registrant's Restated Certificate of Incorporation and Bylaws
include provisions to (i) eliminate the personal liability of its directors for
monetary damages resulting from breaches of their fiduciary duty to the extent
permitted by Section 102(b)(7) of the General Corporation Law of Delaware (the
"Delaware Law") and (ii) require the Registrant to indemnify its directors and
executive officers to the fullest extent permitted by Section 145 of the
Delaware Law, including circumstances in which indemnification is otherwise
discretionary. Pursuant to Section 145 of the Delaware Law, a corporation
generally has the power to indemnify its present and former directors, officers,
employees and agents against expenses incurred by them in connection with any
suit to which they are or are threatened to be made, a party by reason of their
serving in such positions so long as they acted in good faith and in a manner
they reasonably believed to be in or not opposed to, the best interests of the
corporation and with respect to any criminal action, they had no reasonable
cause to believe their conduct was unlawful. The Registrant believes that these
provisions are necessary to attract and retain qualified persons as directors
and officers. These provisions do not eliminate the directors' duty of care,
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
1.
<PAGE> 4
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 acts or omissions that the director believes to be contrary to the best
interests of the Registrant or its stockholders, for any transaction from which
the director derived an improper personal benefit, for acts or omissions
involving a reckless disregard for the director's duty to the Registrant or its
stockholders when the director was aware or should have been aware of a risk of
serious injury to the Registrant or its stockholders, for acts or omissions that
constitute an unexcused pattern of inattention that amounts to an abdication of
the director's duty to the Registrant or its stockholders, for improper
transactions between the director and the Registrant and for improper
distributions to stockholders and loans to directors and officers. The provision
also does not affect a director's responsibilities under any other law, such as
the federal securities law or state or federal environmental laws.
The Registrant has entered into indemnity agreements with each of its
directors and executive officers that require the Registrant to indemnify such
persons against any and all expenses (including attorneys' fees), witness fees,
damages, judgments, fines, settlements and other amounts incurred (including
expenses of a derivative action) in connection with any action, suit or
proceeding, whether actual or threatened, to which any such person may be made a
party by reason of the fact that such person is or was a director, an officer or
an employee of the Registrant or any of its affiliated enterprises, provided
that such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the Registrant and,
with respect to any criminal proceeding, had no reasonable cause to believe his
conduct was unlawful. The indemnification agreements also set forth certain
procedures that will apply in the event of a claim for indemnification
thereunder.
At present, there is no pending litigation or proceeding involving a
director, officer or key employee of the Registrant as to which indemnification
is being sought nor is the Registrant aware of any threatened litigation that
may result in claims for indemnification by any officer or director.
The Registrant has an insurance policy covering the officers and
directors of the Registrant with respect to certain liabilities, including
liabilities arising under the Securities Act or otherwise.
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
<S> <C>
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this Registration
Statement
24.1 Power of Attorney is contained on the signature pages.
</TABLE>
2.
<PAGE> 5
<TABLE>
<S> <C>
99.1 Employee Stock Option Plan (1)
99.2 Form of Incentive Stock Option Agreement under the 1991 Plan (1)
99.3 Form of Incentive Stock Option Certificate under the 1991 Plan (1)
99.4 Form of Non-Qualified Stock Option Agreement under 1991 Plan (1)
99.5 Form of Non-Qualified Stock Option Certificate under 1991 Plan (1)
99.6 1997 Equity Incentive Plan (1)
99.7 Form of Incentive Stock Option Grant Certificate under the 1997 Plan (1)
99.8 1999 Employee Stock Purchase Plan (1)
</TABLE>
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(1) Previously filed together with Registrant's Registration Statement on Form
S-1 (File No. 333-76893) or amendments thereto and incorporated herein by
reference.
ITEM 9. UNDERTAKINGS
1. 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;
(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 (a)(i) and (a)(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 Section 15(d) of the
Exchange Act that are incorporated by reference herein.
3.
<PAGE> 6
(b) That, for the purpose of determining any liability under the
Securities 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.
(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.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the 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.
3. Insofar as indemnification for liabilities arising under 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.
4.
<PAGE> 7
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 Irvine, State of California, on August 24, 1999.
CONTINUUS SOFTWARE CORPORATION
By /s/ John R. Wark
---------------------------------------
John R. Wark,
President, Chief Executive Officer
and Chairman of the Board of Directors
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints John R. Wark and Steven L. Johnson and
each or any one of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, 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 other 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 requisite and necessary to be done in connection therewith,
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 substitutes or substitute, may lawfully do or cause to be
done by virtue hereof.
5.
<PAGE> 8
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ John R. Wark President, Chief Executive Officer August 24, 1999
- ------------------------------------------- and Chairman of the Board of Directors
JOHN R. WARK (Principal Executive Officer)
/s/ Steven L. Johnson Vice President, Finance and Chief August 24, 1999
- ------------------------------------------- Financial Officer (Principal
STEVEN L. JOHNSON Financial and Accounting Officer)
/S/ Fred B. Cox Director August 24, 1999
- -------------------------------------------
FRED B. COX
/s/ KEVIN G. HALL Director August 24, 1999
- -------------------------------------------
KEVIN G. HALL
/s/ A. Barry Patmore Director August 24, 1999
- -------------------------------------------
A. BARRY PATMORE
/s/ Stewart A. Schuster Director August 24, 1999
- -------------------------------------------
STEWART A. SCHUSTER
/s/ Sol Zechter Director August 24, 1999
- -------------------------------------------
SOL ZECHTER
</TABLE>
6.
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
<S> <C>
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this Registration
Statement
24.1 Power of Attorney is contained on the signature pages.
99.1 Employee Stock Option Plan (1)
99.2 Form of Incentive Stock Option Agreement under the 1991 Plan (1)
99.3 Form of Incentive Stock Option Certificate under the 1991 Plan (1)
99.4 Form of Non-Qualified Stock Option Agreement under 1991 Plan (1)
99.5 Form of Non-Qualified Stock Option Certificate under 1991 Plan (1)
99.6 1997 Equity Incentive Plan (1)
99.7 Form of Incentive Stock Option Grant Certificate under the 1997 Plan (1)
99.8 1999 Employee Stock Purchase Plan (1)
</TABLE>
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(1) Previously filed together with Registrant's Registration Statement on Form
S-1 (File No. 333-76893) or amendments thereto and incorporated herein by
reference.
7.
<PAGE> 1
EXHIBIT 5.1
[COOLEY GODWARD LLP Letterhead]
August 24, 1999
Continuus Software Corporation
108 Pacifica
Irvine, CA 92618
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by CONTINUUS SOFTWARE CORPORATION (the "Company") of a
Registration Statement on Form S-8 (the "Registration Statement") with the
Securities and Exchange Commission, covering the registration of up to 3,848,039
shares of the Company's Common Stock $.001 par value (the "Shares"), for
issuance (i) pursuant to the Company's 1997 Equity Incentive Plan and 1999
Employee Stock Purchase Plan (collectively with the Company's Employee Stock
Option Plan, the "Plans"), and (ii) upon the exercise of outstanding options
granted under the Company's 1997 Equity Incentive Plan and Employee Stock Option
Plan.
In connection with this opinion, we have examined and relied upon the
Registration Statement, the Plans, the Company's Amended and Restated
Certificate of Incorporation and By-laws, as amended and restated, and the
originals or copies certified to our satisfaction of such records, documents,
certificates, memoranda and other instruments as in our judgment are necessary
or appropriate to enable us to render the opinion expressed below. We have
assumed the genuineness and authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies thereof and the due execution and delivery of all documents where due
execution and delivery are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Registration
Statement and Plans, will be validly issued, fully paid, and nonassessable
(except as to shares issued pursuant to certain deferred payment arrangements
which will be fully paid and nonassessable when such deferred payments are made
in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ D. Bradley Peck
- -------------------------
D. Bradley Peck
DBP:PRO
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Continuus Software Corporation on Form S-8 of our report dated
January 26, 1999 (except for paragraph 1 of Note 10, as to which the date is
April 16, 1999; Note 14, as to which the date is April 30, 1999; and paragraphs
3 and 4 of Note 1, as to which the dates are July 13, 1999 and July 21, 1999)
appearing in Registration Statement No. 333-76893 on Form S-1 of Continuus
Software Corporation.
/s/ DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Costa Mesa, California
August 24, 1999
