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As filed with the Securities and Exchange Commission on March 31, 2000
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
___________________
ACTUATE CORPORATION
(Exact name of registrant as specified in its charter)
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<CAPTION>
<S> <C> <C>
DELAWARE 7372 94-3193197
(State or other jurisdiction (Primary Standard Industrial (IRS Employer
of incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
701 Gateway Boulevard
South San Francisco, California 94080
(650) 837-2000
(Address of principal executive offices) (Zip Code)
___________________
ACTUATE CORPORATION 1998 EQUITY INCENTIVE PLAN
ACTUATE CORPORATION 1998 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plans)
___________________
NICOLAS C. NIERENBERG
CHIEF EXECUTIVE OFFICER
AND CHAIRMAN OF THE BOARD
ACTUATE CORPORATION
701 Gateway Boulevard
South San Francisco, California 94080
(Name and address of agent for service)
(650) 837-2000
(Telephone number, including area code, of agent for service)
___________________
CALCULATION OF REGISTRATION 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 Price (2) Fee
---------- ---------- --------- ----- ---
<S> <C> <C> <C> <C>
1998 Equity Incentive Plan
- --------------------------
Options 4,187,535 N/A N/A N/A
Common Stock (par value $.001) 4,187,535 shares $60.34375(2) $252,691,565.10(2) $66,710.57
1998 Employee Stock Purchase Plan
- ---------------------------------
Options 300,000 N/A N/A N/A
Common Stock (par value $.001) 300,000 shares $60.34375(2) $18,103,125(2) $4,779.23
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1998 Equity Incentive Plan and
the 1998 Employee Stock Purchase 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 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 average of the high
and low prices per share of Common Stock of Actuate Corporation as reported
on the Nasdaq National Market on March 29, 2000.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
---------------------------------------
Actuate 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 Form 10-K filed with the SEC on March 30, 2000
for the fiscal year ending December 31, 1999; 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 Securities Act of 1933
("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
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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.
Item 8. Exhibits
- ------- --------
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(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-4 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 and the 1998 Employee
Stock Purchase 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
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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 South San Francisco, State of California on
this 31/st/ day of March, 2000.
ACTUATE CORPORATION
By:/s/ Daniel A. Gaudreau
------------------------------------------
Senior Vice President, Finance and
Administration and Chief Financial Officer
POWER OF ATTORNEY
-----------------
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Actuate 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.
Signature Title Date
- --------- ----- ----
Chairman of the Board, March 31, 2000
/s/ Nicolas C. Nierenberg
- -------------------------
Nicolas C. Nierenberg Chief Executive Officer and
Director
(Principal Executive Officer)
Senior Vice President, Finance and, March 31, 2000
/s/ Daniel A. Gaudreau
- -------------------------
Daniel A.Gaudreau Administration and Chief Financial Officer
(Principal Financial and Accounting Officer)
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Signature Title Date
- --------- ----- ----
/s/ Peter I. Cittadini Director, President and Chief March 31, 2000
- -----------------------
Peter I.Cittadini Operating Officer
/s/ George A. Beitzel Director March 31, 2000
- -----------------------
George A. Beitzel
/s/ James W. Breyer Director March 31, 2000
- -----------------------
James W. Breyer
/s/ Arthur C. Patterson Director March 31, 2000
- -----------------------
Arthur C. Patterson
/s/ Nancy J. Schoendorf Director March 31, 2000
- -----------------------
Nancy J. Schoendorf
/s/ Steven D. Whiteman Director March 31, 2000
- ------------------------
Steven D. Whiteman
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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(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-4 of this
Registration Statement.
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EXHIBIT 5
March 31, 2000
Actuate Corporation
701 Gateway Boulevard
South San Francisco, California 94080
Re: Actuate Corporation (the "Company")
Registration Statement for
an aggregate of 4,487,535 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 4,187,535 shares of Common
Stock available for issuance under the Company's 1998 Equity Incentive Plan and
300,000 shares of Common Stock available for issuance under the Company's 1998
Employee Stock Purchase 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 and The 1998 Employee Stock Purchase Plan, such
shares will be validly issued, fully paid and nonassessable shares of Actuate
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
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Exhibit 23.1
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CONSENT OF ERNST AND YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Actuate Corporation 1998 Equity Incentive Plan and 1998
Employee Stock Purchase Plan of our report dated January 12, 2000, with respect
to the consolidated financial statements of Actuate Corporation included in its
Annual Report (Form 10-K) for the year ended December 31, 1999, filed with the
Securities and Exchange Commission.
Palo Alto, California /s/ Ernst & Young, LLP
March 27, 2000
