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As filed with the Securities and Exchange Commission on July 30, 1999
Registration No. 333-__________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ACCRUE SOFTWARE, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 94-3238684
(State of incorporation) (I.R.S. Employer Identification No.)
48634 MILMONT DRIVE
FREMONT, CA 94538-7353
(Address of principal executive offices)
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1999 EMPLOYEE STOCK PURCHASE PLAN
1996 STOCK PLAN
1999 DIRECTORS' STOCK OPTION PLAN
(Full title of the Plans)
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RICHARD D. KREYSAR
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ACCRUE SOFTWARE, INC.
48634 MILMONT DRIVE
FREMONT, CA 94538-7353
(510) 580-4500
(Name, address and telephone number, including area code, of agent for service)
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Copy to:
John V. Bautista
Venture Law Group
A Professional Corporation
2800 Sand Hill Road
Menlo Park, California 94025
(415) 854-4488
Page 1 of 11 Pages
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Exhibit Index on Page 9
(Calculation of Registration Fee on following page)
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<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Maximum Offering Aggregate Amount of
Amount to be Price Per Offering Registration
Title of Securities to be Registered Registered(1) Share Price Fee
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<S> <C> <C> <C> <C>
1999 EMPLOYEE STOCK PURCHASE PLAN
Common Stock,
$0.001 par value................. 1,500,000 $8.50(2) $12,750,000.00 $3,544.50
Shares
1996 STOCK PLAN
Common Stock,
$0.001 par value................. 1,420,793 $2.25(3) $3,196,784.25 $888.71
Shares
Common Stock,
$0.001 par value................. 6,838,784 $8.50(2) $58,129,664.00 $16,160.05
Shares
1999 DIRECTORS' STOCK OPTION PLAN
Common Stock,
$0.001 par value................. 50,000 Shares $8.00(3) $400,000.00 $111.20
Common Stock,
$0.001 par value................. 700,000 Shares $8.50 $5,950,000.00 $1,654.10
TOTAL 10,509,577 $80,426,448.25 $22,358.56
Shares
</TABLE>
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under any of the Plans being
registered pursuant to this Registration Statement by reason of any
stock dividend, stock split, recapitalization or any other similar
transaction effected without the receipt of consideration which results
in an increase in the number of the Registrant's outstanding shares of
Common Stock.
(2) Estimated in accordance with Rule 457(h) under the Securities Act of
1933 (the "Securities Act") solely for the purpose of calculating the
registration fee. The computation is based upon the proposed maximum
offering price per share of Common Stock as set forth in the
Registrant's Registration Statement on Form S-1 (File No. 333-
79491) as amended, multiplied by 85%, which is the percentage of the
trading purchase price applicable to purchases under the referenced
plan.
(3) Computed in accordance with Rule 457(h) under the Securities Act solely
for the purpose of calculating the registration fee. The computation is
based on the weighted average per share exercise price (rounded to
nearest cent) of outstanding options under the referenced plan, the
shares issuable under which are registered hereby.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are hereby incorporated by reference:
(a) The Registrant's Prospectus filed on July 30th, 1999 pursuant to
Rule 424(b) of the Securities Act, which contains audited financial statements
for the Registrant's latest fiscal year for which such statements have been
filed.
(b) Not Applicable.
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed with the Commission under
Section 12 of the Securities Exchange Act of 1934 (the "Exchange Act") on June
18, 1999, including any amendment or report filed for the purpose of updating
such description.
All documents subsequently filed by the Registrant 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 hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
part hereof from the date of filing such documents.
Item 4. DESCRIPTION OF SECURITIES. Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the common stock offered hereby will be passed upon for
Accrue by Venture Law Group, A Professional Corporation, Menlo Park, California.
John V. Bautista, a director of Venture Law Group, is the secretary of Accrue.
As of the date of this Registration Statement, certain directors of Venture Law
Group and an investment partnership affiliated with Venture Law Group own 22,857
shares of the Registrant's Series A preferred stock, which shares will convert
into 22,857 shares of the Registrant's common stock upon the completion of the
Registrant's initial public offering and hold options to purchase 20,000 shares
of our common stock at an exercise price of $8.00 per share.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Certificate of Incorporation reduces the liability of a
director to the corporation or its shareholders for monetary damages for
breaches of his or her fiduciary duty of care to the fullest extent permissible
under Delaware law. The Bylaws of the Registrant further provide for
indemnification of corporate agents to the maximum extent permitted by the
Delaware General Corporation Law. In addition, the Registrant has entered into
Indemnification Agreements with its officers and directors.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable.
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Item 8. EXHIBITS.
Exhibit
Number
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5.1 Opinion of Venture Law Group, a Professional
Corporation.
23.1 Consent of Venture Law Group, a Professional
Corporation (included in Exhibit 5.1).
23.2 Consent of Independent Accountants (see p. 11).
24.1 Powers of Attorney (see p. 8).
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Item 9. UNDERTAKINGS.
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 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 purposes 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.
(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.
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 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.
Insofar as the 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 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 a successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered hereunder, the Registrant will, unless in the opinion of its counsel
the question has already been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question of 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.
[Signature Pages Follow]
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, Accrue Software, Inc., a corporation organized and existing under
the laws of the State of Delaware, 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 Fremont, State of
California, on this 29th day of July, 1999.
Accrue Software, Inc.
By: /s/ Richard D. Kreysar
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Richard D. Kreysar
President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard D. Kreysar and Gregory C. Walker,
jointly and severally, his or her attorneys-in-fact and agents, each with the
power of substitution and resubstitution, for him or her and in his or her name,
place or stead, in any and all capacities, to sign any amendments to this
Registration Statement on Form S-8, and to file such amendments, together with
exhibits and other documents in connection therewith, with the Securities and
Exchange Commission, granting to each attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as he or she might or could do in
person, and ratifying and confirming all that the attorney-in-facts and agents,
or his or her substitute or substitutes, may do or cause to be done by virtue
hereof.
Pursuant to 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.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ Richard D. Kreysar President and Chief Executive July 29, 1999
- ----------------------------- Officer (Principal Executive
Richard D. Kreysar Officer)
/s/ Gregory C. Walker Chief Financial Officer (Principal July 29, 1999
- ----------------------------- Financial and Accounting
Gregory C. Walker Officer)
/s /Christopher J. O'Brien Director July 29, 1999
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Christopher J. O'Brien
/s/ Jonathan Nelson Director July 29, 1999
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Jonathan Nelson
/s/ Robert Smelick Director July 29, 1999
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Robert Smelick
/s/ Max D. Hopper Director July 29, 1999
- -----------------------------
Max D. Hopper
/s/ A. Brooke Seawell Director July 29, 1999
- -----------------------------
A. Brooke Seawell
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Page
Number No.
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<S> <C> <C>
5.1 Opinion of Venture Law Group, a Professional Corporation 10
23.1 Consent of Venture Law Group, a Professional Corporation 10
(included in Exhibit 5.1).
23.2 Consent of Independent Accountants (see p. 11). 11
24.1 Powers of Attorney (see p. 8). 8
</TABLE>
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EXHIBIT 5.1
July 30, 1999
Accrue Software, Inc.
48634 Milmont Drive
Fremont, CA 94538-7353
REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the
"Registration Statement") filed by you with the Securities and Exchange
Commission (the "Commission") on July 30, 1999 in connection with the
registration under the Securities Act of 1933, as amended, of a total of
10,509,577 shares of your Common Stock (the "Shares") reserved for issuance
under the 1996 Stock Plan, the 1999 Employee Stock Purchase Plan and the 1999
Directors' Stock Option Plan. As your counsel in connection with this
transaction, we have examined the proceedings taken and are familiar with the
proceedings proposed to be taken by you in connection with the sale and issuance
of the Shares.
It is our opinion that upon conclusion of the proceedings being taken or
contemplated by us, as your counsel, to be taken prior to the issuance of the
Shares, and upon completion of the proceedings being taken in order to permit
such transactions to be carried out in accordance with the securities laws of
the various states where required, the Shares when issued and sold in the manner
described in the Registration Statement will be legally and validly issued,
fully paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement, including the Prospectus constituting a part thereof,
and in any amendment thereto.
Very truly yours,
VENTURE LAW GROUP
A Professional Corporation
/s/ Venture Law Group
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 dated July 30, 1999 of our report dated May 17, 1999,
except for Note 11, as to which the date is May 25, 1999, relating to the
financial statements, which appears in the Prospectus of Accrue Software, Inc.
filed on July 30, 1999 pursuant to Rule 424(b) of the Securities Act. We also
consent to the incorporation by reference of our report dated May 17, 1999
relating to the financial statement schedule, which appears in such Prospectus.
/s/ PricewaterhouseCoopers
San Jose, CA
July 30, 1999
