<PAGE>
As filed with the Securities and Exchange Commission on July 27, 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
___________________
ACTUATE SOFTWARE CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 7372 94-3193197
(STATE OR OTHER (PRIMARY STANDARD (IRS EMPLOYER
JURISDICTION OF INDUSTRIAL IDENTIFICATION NO.)
INCORPORATION CLASSIFICATION
OR ORGANIZATION) CODE NUMBER)
999 BAKER WAY
SAN MATEO, CALIFORNIA 94404
(650) 425-2300
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
___________________
ACTUATE SOFTWARE CORPORATION 1998 EQUITY INCENTIVE PLAN
ACTUATE SOFTWARE CORPORATION 1998 EMPLOYEE STOCK PURCHASE PLAN
ACTUATE SOFTWARE CORPORATION 1998 NON-EMPLOYEE DIRECTORS OPTION PLAN
(FULL TITLE OF THE PLANS)
___________________
NICOLAS C. NIERENBERG
PRESIDENT, CHIEF EXECUTIVE OFFICER
AND CHAIRMAN OF THE BOARD
ACTUATE SOFTWARE CORPORATION
999 BAKER WAY
SAN MATEO, CALIFORNIA 94404
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(650) 425-2300
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
___________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
======================================================================================================
TITLE OF PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE OFFERING REGISTRATION
REGISTERED REGISTERED (1) PER SHARE PRICE (2) FEE
- ----------------------------------- ----------------- ----------- ----------------- ------------
<S> <C> <C> <C> <C>
1998 Equity Incentive Plan
- -----------------------------------
Options 2,291,500 n/a n/a n/a
Common Stock (par value $.001) 2,291,500 SHARES $17.40625(2) $39,886,421.87(2) $11,766.50
1998 Employee Stock Purchase Plan
- -----------------------------------
Options 250,000 n/a n/a n/a
Common Stock (par value $.001) 250,000 SHARES $17.40625(2) $4,351,562.50(2) $1,283.71
1998 Non-Employee Directors Plan
- --------------------------------
Options 200,000 n/a n/a n/a
Common Stock (par value $.001) 200,000 SHARES $17.40625(2) $3,481,250 (2) $1,026.97
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1998 Equity Incentive Plan,
the 1998 Employee Stock Purchase Plan and the 1998 Non-Employee Directors
Option Plan 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 Actuate Software Corporation.
(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 weighted average
exercise price of the outstanding options.
(3) 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 Actuate Software Corporation as
reported on the Nasdaq National Market on July 23, 1998.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
- ------- ---------------------------------------
Actuate Software Corporation (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 prospectus filed with the SEC on July 20, 1998
pursuant to Rule 424(b) of the Securities Act of 1933, as amended (the
"1933 Act"), in connection with the Registration Statement No. 333-
55741 on Form S-1 filed with the SEC on July 17, 1998, together with
any and all amendments thereto, in which there is set forth audited
balance sheets as of December 31, 1996 and 1997, and the related
statements of operations, stockholder's equity (net capital
deficiency), and cash flows for each of the three years in the period
ended December 31, 1997, and
(b) The Registrant's Registration Statement No. 0-24607 on Form 8-A filed
with the SEC on July 10, 1998 pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended (the "34 Act") in which there is
described the terms, rights and provisions applicable to the
Registrant's outstanding Common Stock.
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.
II-1
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Item 7. Exemption from Registration Claimed
- ------- -----------------------------------
Not Applicable.
Item 8. Exhibits
- ------- --------
Exhibit Number Exhibit
- -------------- -------
4 Instrument Defining Rights of Stockholders. Reference is made
to Registrant's Registration Statement No. 0-246007 on Form
8-A, which is incorporated herein by reference pursuant to
Item 3(d) 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 1998 Equity Incentive Plan, 1998 Employee Stock
Purchase Plan and the 1998 Non-Employee Directors Plan.
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.
II-2
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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 San Mateo, State of California on this 24th day
of July, 1998.
ACTUATE SOFTWARE CORPORATION
By: /s/ Nicolas C. Nierenberg
-------------------------------------
President and Chief Executive Officer
POWER OF ATTORNEY
-----------------
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Actuate Software
Corporation, a Delaware corporation, do hereby constitute and appoint Nicolas C.
Nierenberg and Daniel A. Gaudreau, 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.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Nicolas C. Nierenberg Chairman of the Board, July 24, 1998
- ---------------------------- President, Chief Executive Officer
Nicolas C. Nierenberg and Director
(Principal Executive Officer)
/s/ Daniel A. Gaudreau Vice President, Finance, July 24, 1998
- ---------------------------- and Chief Financial Officer
Daniel A. Gaudreau (Principal Financial and Accounting Officer)
</TABLE>
II-3
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<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ James Breyer Director July 24, 1998
- ----------------------------
James Breyer
/s/ Arthur Patterson Director July 24, 1998
- ----------------------------
Arthur Patterson
/s/ Nancy Schoendorf Director July 24, 1998
- ----------------------------
Nancy Schoendorf
/s/ Steven Whiteman Director July 24, 1998
- ----------------------------
Steven Whiteman
</TABLE>
II-4
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EXHIBIT INDEX
Exhibit Number Exhibit
- -------------- -------
4 Instrument Defining Rights of Stockholders. Reference is made
to Registrant's Registration Statement No. 0-24607 on Form 8-
A, which is incorporated herein by reference pursuant to Item
3(d) 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.
<PAGE>
Exhibit 5
---------
July 24, 1998
Actuate Software Corporation
999 Baker Way
San Mateo, California 94404
Re: Actuate Software Corporation (the "Company")
Registration Statement for
an aggregate of 2,741,500 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) 2,291,500 shares of Common Stock
available for issuance under the Company's 1998 Equity Incentive Plan, (ii)
250,000 shares of Common Stock available for issuance under the Company's 1998
Employee Stock Purchase Plan and (iii) 200,000 shares of Common Stock available
for issuance under the Company's 1998 Non-Employee Directors Plan. We advise
you that, in our opinion, when such shares have been issued and sold pursuant to
the applicable provisions of the 1998 Equity Incentive Plan, the 1998 Employee
Stock Purchase Plan and the 1998 Non-Employee Directors Plan and in accordance
with the Registration Statement, such shares will be validly issued, fully paid
and nonassessable shares of Actuate Software Corporation'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
-------------------------
Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP
<PAGE>
Exhibit 23.1
------------
CONSENT OF INDEPENDENT PUBLIC AUDITORS
The Board of Directors
Actuate Software Corporation
We consent to the incorporation by reference in the Registration Statement (Form
S-8) of Actuate Software Corporation for the registration of 2,291,500 shares of
its common stock pertaining to the 1998 Equity Incentive Plan, 250,000 shares of
its common stock pertaining to the 1998 Employee Stock Purchase Plan, and
200,000 shares of its common stock pertaining to the 1998 Non-Employee Directors
Plan, of our report dated April 17, 1998 (except for Note 10 as to which the
date is July 7, 1998), with respect to the financial statements of Actuate
Software Corporation included in its Registration Statement No. 333-55741 on
Form S-1 filed with the Securities and Exchange Commission on July 17, 1998.
/s/ Ernst & Young LLP
Palo Alto, 1998 ---------------------
July 24, 1998 Ernst & Young LLP
