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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 26, 1998
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
CLARIFY INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C> <C>
DELAWARE 7372 77-0259235
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION IDENTIFICATION NUMBER)
CODE NUMBER)
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2125 O'NEL DRIVE
SAN JOSE, CALIFORNIA 95131
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
CLARIFY INC. EMPLOYEE STOCK PURCHASE PLAN
CLARIFY INC. 1995 STOCK OPTION/STOCK ISSUANCE PLAN
OPTIONS GRANTED UNDER WRITTEN COMPENSATION AGREEMENTS WITH
ANTHONY ZINGALE, KIRSTEN BERG-PAINTER, JAN PRAISNER AND JEANNE URICH
(FULL TITLE OF THE PLANS)
ANTHONY ZINGALE
PRESIDENT AND CHIEF EXECUTIVE OFFICER
2125 O'NEL DRIVE,
SAN JOSE, CA 95131
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(408) 573-3000
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED (1) PER SHARE OFFERING PRICE REGISTRATION FEE
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Employee Stock Purchase Plan:..... 500,000 N/A N/A N/A
Common Stock, $0.0001 par value... 500,000 shares $8.50(2) $4,250,000(2) $1,253.75
1995 Stock Option / Stock Issuance
Plan:
Options to purchase Common
Stock........................... 1,226,217 N/A N/A N/A
Common Stock, $0.0001 par value... 1,226,217 shares $8.50(2) $10,422,844.50(2) $3,074.74
Option Granted Under Written
Compensation Agreement with
Anthony Zingale
Options to purchase Common
Stock........................... 400,000 N/A N/A N/A
Common Stock, $0.0001 par value... 400,000 shares $14.875(3) $5,950,000(3) $1,755.25
Option Granted Under Written
Compensation Agreement with
Kirsten Berg-Painter
Options to purchase Common
Stock........................... 220,000 N/A N/A N/A
Common Stock, $0.0001 par value... 220,000 shares $11.6875(3) $2,571,250(3) $758.52
Option Granted Under Written
Compensation Agreement with Jan
Praisner
Options to purchase Common
Stock........................... 225,000 N/A N/A N/A
Common Stock, $0.0001 par value... 225,000 shares $13.0615(3) $2,939,062.50(3) $867.03
Option Granted Under Written
Compensation Agreement with
Jeanne Urich
Options to purchase Common
Stock........................... 170,000 N/A N/A N/A
Common Stock, $0.0001 par value... 170,000 shares $14.3750(3) $2,443,750(3) $720.91
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(1) This Registration Statement shall also cover any additional shares of Common
Stock which become issuable under the Clarify Inc. Employee Stock Purchase
Plan, the Clarify Inc. 1995 Stock Option / Stock Issuance Plan and the
Options Granted Under Written Compensation Agreements with Anthony Zingale,
Kirsten Berg-Painter, Jan Praisner and Jeanne Urich 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 Clarify Inc.
(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 selling prices per share of Common Stock of Clarify Inc. as reported
on the Nasdaq National Market on October 19, 1998.
(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 exercise price of
the outstanding option.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Clarify Inc. ("Clarify") hereby incorporates by reference into this
Registration Statement the following documents previously filed with the
Securities and Exchange Commission ("SEC"):
(a) Clarify's report on Form 10-K for the fiscal year ended December
31, 1997;
(b) (1) Clarify's quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1998;
(2) Clarify's quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 1998;
(c) Clarify's Registration Statement No. 00-26776 on Form 8-A filed
with the SEC on September 15, 1995, under Section 12(b) of the Securities
Exchange Act of 1934 (the "1934 Act"), in which there is described the
terms, rights and provisions applicable to Clarify's outstanding Common
Stock.
All reports and definitive proxy or information statements filed under
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. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any subsequently filed
document which also is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
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. Clarify'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. Clarify'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 Clarify 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 Clarify 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. Clarify has entered into Indemnification
Agreements with its officers and directors. The Indemnification Agreements
provide Clarify's officers and directors with further indemnification to the
maximum extent permitted by the Delaware General Corporation Law.
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EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 7. EXHIBITS
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EXHIBIT
NUMBER EXHIBIT
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4 Instrument Defining Rights of Stockholders. Reference is
made to Registrant's Registration Statement No. 00-26776 on
Form 8-A, which is incorporated herein by reference under
the Item 3(C) of this Registration Statement.
5 Opinion and consent of Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian, LLP.
23.1 Consent of PricewaterhouseCoopers LLP -- Independent Accountants.
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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ITEM 8. UNDERTAKINGS
A. Clarify 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 by
Clarify under the Section 13 or Section 15(d) of the 1934 Act that are
incorporated by reference into 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 Clarify's Employee Stock Purchase Plan, Clarify's 1995 Stock
Option / Stock Issuance Plan and the Written Compensation Agreements with
Anthony Zingale, Kirsten Berg-Painter, Jan Praisner and Jeanne Urich.
B. Clarify hereby undertakes that, for purposes of determining any
liability under the 1933 Act, each filing of Clarify's annual report under
Section 13(a) or Section 15(d) of the 1934 Act that is incorporated by reference
into 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.
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C. Insofar as indemnification for liabilities arising under the 1933 Act
may be permitted to directors, officers or controlling persons of Clarify under
the foregoing provisions, or otherwise, Clarify 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 Clarify of
expenses incurred or paid by a director, officer or controlling person of
Clarify 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, Clarify 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
Under the requirements of the Securities Act of 1933, as amended, Clarify
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 Jose, State of California, on this
23rd day of October, 1998.
CLARIFY INC.
By: /s/ ANTHONY ZINGALE
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Anthony Zingale
President, Chief Executive Officer
and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Clarify Inc., a Delaware
corporation, do hereby constitute and appoint Anthony Zingale and Jan Praisner,
and each 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 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
any 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.
Under 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.
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SIGNATURE TITLE DATE
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/s/ ANTHONY ZINGALE President, Chief Executive Officer October 23, 1998
- ------------------------------------------ (Principal Executive Officer) and
Anthony Zingale Director
/s/ JAN PRAISNER Chief Financial Officer (Principal October 23, 1998
- ------------------------------------------ Financial and Accounting Officer)
Jan Praisner
/s/ THOMAS H. BREDT Director October 23, 1998
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Thomas H. Bredt
/s/ JOSEPH B. COSTELLO Director October 23, 1998
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Joseph B. Costello
/s/ MARY JANE ELMORE Director October 23, 1998
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Mary Jane Elmore
/s/ CHRISTOPHER H. GREENDALE Director October 23, 1998
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Christopher H. Greendale
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EXHIBIT INDEX
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EXHIBIT
NUMBER EXHIBIT
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4 Instrument Defining Rights of Stockholders. Reference is
made to Registrant's Registration Statement No. 00-26776 on
Form 8-A, which is incorporated herein by reference under
the Item 3(C) of this Registration Statement.
5 Opinion and consent of Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian, LLP.
23.1 Consent of PricewaterhouseCoopers LLP -- Independent Accountants.
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
Opinion and consent of Gunderson Dettmer Stough
Villeneuve Franklin & Hachigian, LLP
October 23, 1998
Clarify Inc.
2125 O'Nel Drive
San Jose, CA 95131
Re: Clarify Inc. (the "Company")
Registration Statement for an Offering
of 2,741,217 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 2,741,217 shares of
Common Stock available for issuance under the Company's Employee Stock Purchase
Plan, 1995 Stock Option / Stock Issuance Plan and Options Granted Under Written
Compensation Agreements with Anthony Zingale, Kirsten Berg-Painter, Jan Praisner
and Jeanne Urich. We advise you that, in our opinion, when such shares have been
issued and sold under the applicable provisions of the Company's Employee Stock
Purchase Plan, the 1995 Stock Option / Stock Issuance Plan, the Written
Compensation Agreements with Anthony Zingale, Kirsten Berg-Painter, Jan Praisner
and Jeanne Urich and in accordance with the Registration Statement, such shares
will be validly issued, fully paid and nonassessable shares of the Company'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
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Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian, LLP
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EXHIBIT 23.1
Consent of PricewaterhouseCoopers LLP - Independent Accountants
We consent to the incorporation by reference in this registration statement on
Form S-8 (File No. 333-_______) of our report dated January 20, 1998 on our
audits of the financial statements and financial statement schedules of Clarify,
Inc. as of December 31, 1996 and 1997 and for the years ended December 31, 1995,
1996 and 1997 which report was included in the Company's Annual Report on Form
10-K.
San Jose, California /s/ PricewaterhouseCoopers L.L.P.
October 23, 1998 ---------------------------------
PricewaterhouseCoopers L.L.P.
