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As filed with the Securities and Exchange Commission on June 29, 2001
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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1996 STOCK PLAN
2000 NON-EXECUTIVE STOCK OPTION PLAN
(Full title of the Plans)
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JEFFREY S. WALKER
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
Frances Johnston
Peter D. Hadrovic
Venture Law Group
A Professional Corporation
2800 Sand Hill Road
Menlo Park, California 94025
(415) 854-4488
Page 1 of 7 Pages
Exhibit Index on Page 7
(Calculation of Registration Fee on following page)
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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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1996 STOCK PLAN
Common Stock,
$0.001 par value.................. 958,050 $ 0.26 (2) $ 249,093.00 $ 62.27
Common Stock,
$0.001 par value.................. 3,740,274 $ 0.66 (3) $ 2,468,580.84 $ 617.15
2000 NON-EXECUTIVE STOCK PLAN
Common Stock,
$0.001 par value.................. 743,000 $16.25 (2) $12,073,750.00 $3,018.44
Common Stock,
$0.001 par value.................. 257,000 $ 0.66 (3) $ 169,620.00 $ 42.41
TOTAL 5,698,324 Shares $14,961,043.84 $3,740.27
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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) 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 or purchase price
(rounded to nearest cent) of outstanding options and stock grants under
the referenced plan, the shares issuable under which are registered
hereby.
(3) Estimated in accordance with Rule 457(c) under the Securities Act solely
for the purpose of calculating the registration fee. The computation
(rounded to the nearest cent) is based upon the average high and low
sale prices of the Common Stock as reported on The Nasdaq Stock Market
on June 27, 2001.
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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 latest annual report on Form 10-K/A filed pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), which contains audited financial statements for the
Registrant's latest fiscal year for which such statements have been filed.
(b) All other reports filed by the Registrant pursuant to Section 13(a)
or 15(d) of the Exchange Act, since the end of the fiscal year covered by the
annual report on Form 10-K/A referred to in (a) above.
(c) The description of Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed with the Commission under
Section 12 of the Exchange Act on June 18, 1999, and 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.
Certain legal matters with respect to the legality of the issuance of
the Common Stock registered hereby will be passed upon for the Registrant by
Venture Law Group, Menlo Park, California. As of the date of this Registration
Statement, certain members of Venture Law Group and investment partnerships of
which members of Venture Law Group are partners beneficially own approximately
6,549 shares of the Registrant's Common Stock.
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.
Item 8. EXHIBITS.
Exhibit
Number
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4.6 2000 Non-Executive Stock Option Plan
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
24.1 Powers of Attorney (see p. 6)
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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 27th day of June, 2001.
Accrue Software, Inc.
By: /s/ Jeffrey S. Walker
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Jeffrey S. Walker
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 Jeffrey S. Walker and Harrison N. Paist,
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.
Signature Title Date
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/s/ Jeffrey S. Walker President and Chief Executive June 27, 2001
------------------------------ Officer and Director (Principal
Jeffrey S. Walker Executive Officer)
/s/ Harrison N. Paist Vice President of Finance and June 27, 2001
------------------------------ Interim Chief Financial Officer
Harrison N. Paist (Principal Financial and
Accounting Officer)
/s/ Yorgen Edholm Director June 27, 2001
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Yorgen Edholm
/s / David Folkman Director June 27, 2001
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David Folkman
/s/ Max D. Hopper Director June 27, 2001
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Max D. Hopper
/s/ Zev Laderman Director June 27, 2001
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Zev Laderman
/s/ Jonathan Nelson Director June 27, 2001
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Jonathan Nelson
/s/ Robert Smelick Chairman of the Board of Directors June 27, 2001
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Robert Smelick
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INDEX TO EXHIBITS
Exhibit
Number
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4.6 2000 Non-Executive Stock Option Plan
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 Public Accountants
24.1 Powers of Attorney (see p. 6).