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As filed with the Securities and Exchange Commission on April 21, 1997
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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INFINITY FINANCIAL TECHNOLOGY, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 77-0227321
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
640 CLYDE COURT
MOUNTAIN VIEW, CA 94043-2239
(Address of Principal Executive Offices)
1989 STOCK OPTION PLAN
1993 STOCK INCENTIVE PLAN
(Full Title of the Plans)
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TERRY H. CARLITZ
CHIEF FINANCIAL OFFICER AND VICE PRESIDENT, FINANCE
INFINITY FINANCIAL TECHNOLOGY, INC.
640 CLYDE COURT
MOUNTAIN VIEW, CA 94043-2239
(Name and Address of Agent for Service)
(415) 940-6100
(Telephone Number, Including Area Code, of Agent For Service)
Copy to:
MICHAEL C. PHILLIPS, ESQ.
CORI M. ALLEN, ESQ.
MORRISON & FOERSTER LLP
755 PAGE MILL ROAD
PALO ALTO, CA 94304
(415) 813-5600
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================================================
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Securities to be Offering Price Aggregate Offering Registration
to be Registered Registered(1) Per Share(2) Price(2) Fee
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001
par value per share 9,050,000 $13.75 $124,437,500 $37,709
===========================================================================================================================
</TABLE>
(1) Includes 2,695,644 shares to be registered under the 1989 Stock Option Plan
and 6,354,356 shares to be registered under the 1993 Stock Incentive Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) and Rule 457(c) under the Securities Act, the
proposed maximum offering price per share and the proposed aggregate
maximum offering price have been determined on the basis of the high and
low prices reported on Nasdaq NMS on April 17, 1997.
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Page 1 of 11 pages.
The Index to Exhibits appears on page II-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Infinity Financial Technology, Inc. (the
"Registrant") with the Securities and Exchange Commission (the "Commission")
are incorporated by reference herein:
(a) The Registrant's latest annual report filed with the Securities and
Exchange Commission on March 31, 1997, pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), that
contains audited financial statements for the Registrant's latest fiscal year
for which such statements have been filed (the "Annual Report").
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the Annual Report.
(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 Exchange Act on October 24, 1996 (with respect to the Common
Stock), including any amendments or reports filed for the purpose of updating
such description.
All documents filed by the Registrant with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered 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 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 other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any 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.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 ("Section 145") of the Delaware General Corporation Law
("DGCL") provides a detailed statutory framework covering indemnification of
officers and directors against liabilities and expenses arising out of legal
proceedings brought against them by reason of their being or having been
directors or officers. Section 145 generally provides that a director or
officer of a corporation (i) shall be indemnified by the corporation for all
expenses of such legal proceedings when he is successful on the merits, (ii)
may be indemnified by the corporation for the expenses, judgments, fines and
amounts paid in settlement of such proceedings (other than a derivative suit),
even if he is not successful on the merits, if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful, and (iii) may be
indemnified by the corporation for the expenses of a derivative suit (a suit by
a stockholder alleging a breach by a director or officer of a duty owed to the
corporation), even if he is not successful on the merits, if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation. No indemnification may be made under clause
(iii) above, however, if the director or officer is adjudged liable for
negligence or misconduct in the performance of his duties to the corporation,
unless a corporation determines that, despite such adjudication, but in view of
all the circumstances, he is entitled to indemnification. The indemnification
described in clauses (ii) and (iii) above may be made only upon a determination
that indemnification is proper because the applicable standard of conduct has
been met. Such a determination may be made by a majority of a quorum of
disinterested directors, independent legal counsel, the stockholders or a court
of competent jurisdiction. The Company's Certificate of Incorporation provides
that the Company shall indemnify to the fullest extent permitted by Section
145, as it now exists or as amended, all persons whom it may indemnify pursuant
thereto.
Section 102(b)(7) of the DGCL permits a corporation to provide in its
Certificate of Incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174
of the DGCL, or (iv) for any transaction from which the director derived an
improper personal benefit. The Company's Certificate of Incorporation provides
for the elimination of personal liability of a director for breach of fiduciary
duty, as permitted by Section 102(b)(7) of the DGCL.
The Company has obtained liability insurance insuring the Company's
officers and directors against liabilities that they may incur in such
capacities.
The Company has entered into agreements to indemnify its directors and
executive officers, in addition to indemnification provided for in the
Company's charter documents. These agreements, among other things, provide for
the indemnification of the Company's directors and executive officers for
certain expenses (including attorneys' fees), judgments, fines and
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settlement amounts incurred by any such person in any action or proceeding,
including any action by or in the right of the Company, arising out of such
person's services as a director or executive officer of the Company, any
subsidiary of the Company or any other company or enterprise to which such
person provides services at the request of the Company to the fullest extent
permitted by applicable law. The Company believes that these provisions and
agreements will assist the Company in attracting and retaining qualified
persons to serve as directors and executive officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
4.1 Form of Amended and Restated Certificate of Incorporation of
the Registrant (incorporated by reference to Exhibit 3.1 to
the Registrant's Registration Statement on Form S-1
(Commission File No. 333-6857) which became effective on
October 24, 1996 (the "Registration Statement on Form S-1")).
4.2 Registrant's Amended and Restated Bylaws (incorporated by
reference to Exhibit 3.2 to the Registration Statement on Form
S-1).
4.3 1989 Stock Option Plan, 1993 Stock Incentive Plan, 1996 Stock
Incentive Plan and 1996 Employee Stock Purchase Plan and form
of Stock Option Agreements (incorporated by reference to
Exhibits 10.13, 10.14, 10.15 and 10.16 to the Registration
Statement on Form S-1).
5.1 Opinion of Morrison & Foerster LLP.
23.1 Consent of Morrison & Foerster LLP (contained in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, independent auditors.
24.1 Power of Attorney (See page II-7).
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
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the 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 the Registration
Statement;
(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 the Registration Statement.
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Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
this Registration Statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose 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 herein, 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.
(b) 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 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to 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.
(c) Insofar as 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 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 Securities 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, Infinity Financial Technology, Inc. certifies that it has reasonable
grounds to believe that it meets all 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 Mountain View, State
of California, on April 18, 1997.
INFINITY FINANCIAL TECHNOLOGY, INC.
By: /s/ Terry H. Carlitz
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Terry H. Carlitz
Chief Financial Officer and Vice
President, Finance
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints, severally and not jointly, Roger A.
Lang and Terry H. Carlitz, with full power to act alone, his true and lawful
attorneys-in-fact, with the power of substitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact full power and authority to do and perform each and every act
and thing requisite and necessary to be done as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact may lawfully 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
--------- ----- ----
<S> <C> <C>
President, Chief Executive Officer and April 18, 1997
Director (Principal Executive Officer)
/s/ Roger A. Lang
- --------------------------------------
Roger A. Lang, Jr.
Chief Financial Officer and Vice President, April 18, 1997
Finance (Principal Financial and Accounting
/s/ Terry H. Carlitz Officer)
- --------------------------------------
Terry H. Carlitz
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Charles H. Marston Director April 18, 1997
- --------------------------------
Charles H. Marston
/s/ Till M. Guldimann Director April 18, 1997
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Till M. Guldimann
/s/ John C. Lewis Director April 18, 1997
- --------------------------------
John C. Lewis
/s/ Douglas M. Leone Director April 18, 1997
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Douglas M. Leone
/s/ James A. Dorrian Director April 18, 1997
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James A. Dorrian
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NO.
- ------ ----------- ----------
<S> <C> <C>
4.1 Form of Amended and Restated Certificate of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.1 to the Registrants'
Registration Statement on Form S-1 (Commission File No. 333-8647) which
became effective on October 24, 1996 (the "Registration Statement on Form S-1")).
4.2 Registrant's Amended and Restated Bylaws (incorporated by reference to
Exhibit 3.2 to the Registration Statement on Form S-1).
4.3 1989 Stock Option Plan, 1993 Stock Incentive Plan, 1996 Stock Incentive Plan
and 1996 Employee Stock Purchase Plan and form of Stock Option Agreements
(incorporated by reference to Exhibit 10.13, 10.14, 10.15 and 10.16 to the
Registration Statement on Form S-1).
5.1 Opinion of Morrison & Foerster LLP. 10
23.1 Consent of Morrison & Foerster LLP (contained in Exhibit 5.1). 10
23.2 Consent of Ernst & Young LLP, independent auditors. 11
24.1 Power of Attorney (See pages II-7). 7
</TABLE>
II-8
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Exhibit 5.1
MORRISON & FOERSTER LLP
Palo Alto, California
April 21, 1997
Infinity Financial Technology, Inc.
640 Clyde Court
Mountain View, CA 94043
Gentlemen:
At your request, we have examined the Registration Statement on Form S-8
executed by you on April 21, 1997, and to be filed with the Securities and
Exchange Commission (the "SEC") in connection with the registration under the
Securities Act of 1933, as amended, of an aggregate of 9,050,000 shares of your
common stock, $.001 par value (the "Common Stock") which will be issuable under
the 1989 Stock Option Plan and the 1993 Stock Incentive Plan (the "Plans").
As your counsel in connection with the Registration Statement, we have
examined the proceedings taken by you in connection with the adoption of the
Plans and the authorization of the issuance of the shares of Common Stock under
the Plans (the "Plan Shares") and such documents as we have deemed necessary to
render this opinion.
Based upon the foregoing, it is our opinion that the Plan Shares, when
issued and outstanding pursuant to the terms of the Plans, will be validly
issued, fully paid and nonassessable shares of Common Stock.
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Morrison & Foerster LLP
<PAGE> 1
Exhibit 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1989 Stock Option Plan and 1993 Stock Incentive Plan of
Infinity Financial Technology, Inc. of our report dated January 21, 1997, with
respect to the consolidated financial statements and schedule of Infinity
Financial Technology, Inc., included in the Annual Report on Form 10-K for the
year ended December 31, 1996, filed with the Securities and Exchange
Commission.
/s/ ERNST & YOUNG LLP
Palo Alto, California
April 18, 1997
