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As filed with the Securities and Exchange Commission on November 15, 1999
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
E.PIPHANY, INC.
(Exact name of Registrant as specified in its charter)
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<S> <C>
Delaware 77-0443392
(State of Incorporation) (I.R.S. Employer Identification No.)
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1900 South Norfolk Street, Suite 310
San Mateo, California 94403
(Address, including zip code, of Registrant's principal executive offices)
1997 STOCK PLAN
1999 STOCK PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
Roger S. Siboni
Chief Executive Officer
E.piphany, Inc.
1900 South Norfolk Street, Suite 310
San Mateo, California 94403
(650) 496-2430
(Name, address, and telephone number, including area code, of agent for service)
Copy to:
Aaron J. Alter, Esq.
N. Anthony Jeffries, Esq.
Bradley L. Finkelstein, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
(650) 493-9300
CALCULATION OF REGISTRATION FEE
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Proposed
Title of Securities to Amount Maximum Proposed Amount of
be Registered to be Offering Price Maximum Aggregate Registration
Registered Per Share Offering Price Fee
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<S> <C> <C> <C> <C>
Common Stock issuable under 1997 Stock Plan, par
value $0.0001 6,900,000(1) $3.05(2) $21,045,000.00(2) $5,850.51
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Common Stock issuable under 1999 Stock Plan, par
value $0.0001 3,614,613(1) $104.60(3) $378,088,519.90(3) $105,108.61
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Common Stock issuable under 1999 Employee Stock
Purchase Plan, par value $0.0001 2,000,000(1) $88.91(4) $177,820,000.00(4) $49,433.90
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Totals: 12,514,613 $576,953,519.90 $160,393.08
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable 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.
(2) Estimated pursuant to Rule 457(h) under the Securities Act of 1933, as
amended (the "Securities Act"), solely for the purpose of calculating the
total registration fee. Computation is based pursuant to Rule 457(h) of the
Securities Act whereby the per share price is equal to the weighted average
exercise price of $3.05 per share.
(3) Estimated pursuant to Rule 457(c) under the Securities Act solely for the
purpose of calculating the total registration fee. As the price at which
options are to be granted in the future is not currently determined,
computation is based pursuant to Rule 457(c) of the Securities Act whereby
the per share price is the average between the high and low price reported
in the Nasdaq National Market on November 11, 1999, which average was
$104.60.
(4) Estimated pursuant to Rule 457(h) solely for the purpose of Calculating the
registration fee, whereby the estimated proposed maximum offering price per
share is $88.91 (85% of $104.60 the average between the ask and bid price
reported in the Nasdaq National Market on November 11, 1999).
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
There are hereby incorporated by reference into this Registration Statement
and into the Prospectuses relating to this Registration Statement pursuant to
Rule 428 the following documents and information previously filed with the
Securities and Exchange Commission (the "Commission"):
1. The Registrant's final prospectus, filed with the Commission on
September 27, 1999, filed pursuant to Rule 424(b) promulgated under
the Securities Act of 1933, as amended (the "Securities Act")
relating to the Registration Statement on Form S-1 (File No.
333-82799), which was declared effective on September 21, 1999.
2. The description of Registrant's Common Stock contained in
Registrant's Registration Statement on Form 8-A filed with the
Commission on September 9, 1999.
3. The Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1999, filed with the Commission on November 15,
1999.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act after the date hereof, and prior to the filing of
a post-effective amendment which indicates that all securities offered have been
sold or which registers all securities then remaining unsold, shall be deemed to
be incorporated by reference herein and to be 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 permits a corporation
to include in its charter documents, and in agreements between the corporation
and its directors and officers, provisions expanding the scope of
indemnification beyond that specifically provided by the current law.
Article VII of the Registrant's Amended and Restated Certificate of
Incorporation provides for the indemnification of directors to the fullest
extent permissible under Delaware law.
Article VI of the Registrant's Bylaws provides for the indemnification of
officers, directors and third parties acting on behalf of the Registrant if such
person acted in good faith and in a manner reasonably believed to be in and not
opposed to the best interest of the Registrant, and, with respect to any
criminal action or proceeding, the indemnified party had no reason to believe
his or her conduct was unlawful.
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The Registrant has entered into indemnification agreements with its
directors and executive officers, in addition to indemnification provided for in
the Registrant's Bylaws, and intends to enter into indemnification agreements
with any new directors and executive officers in the future.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
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Exhibit
Number Document
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4.1* Registrant's 1997 Stock Plan
4.2* Registrant's 1999 Stock Plan
4.3* Registrant's 1999 Employee Stock Purchase Plan
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation ("WSGR")
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants
23.2 Consent of WSGR (contained in Exhibit 5.1)
24.1 Power of Attorney (see page 4)
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(*) Previously filed as an exhibit to Registrant's Registration Statement on
Form S-1 (File No. 333-82799), declared effective September 21, 1999.
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 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 the purpose of determining any liability under the
Securities Act of 1933, as amended (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.
(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
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered
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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 Securities and Exchange
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 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, the Registrant,
E.piphany, Inc., 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 on Form S-8 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the city of Palo Alto, State of
California, on the 12th day of November , 1999.
E.piphany, Inc.
By: /s/ Roger S. Siboni
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Roger S. Siboni
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Roger S. Siboni and Kevin J. Yeaman and each of
them, acting individually, as his attorney-in-fact, with full power of
substitution, for him and in any and all capacities, to sign any and all
amendments to this Registration Statement on Form S-8 (including post-effective
amendments) and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming our signatures as they may be signed by our said
attorney to any and all amendments to the Registration Statement on Form S-8.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement on Form S-8 has been signed by the following persons in the capacities
and on the dates indicated.
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Signature Title Date
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/s/ Roger S. Siboni President, Chief Executive Officer and November 12, 1999
- ----------------------------- Director (Principal Executive Officer)
Roger S. Siboni
Vice President, Chief Financial Officer November 12, 1999
/s/ Kevin J. Yeaman (Principal Financial and Accounting
- ----------------------------- Officer)
Kevin J. Yeaman
/s/ Eliot L. Wegbreit Chairman of the Board of Directors November 12, 1999
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Eliot L. Wegbreit
/s/ Paul M. Hazen Director November 12, 1999
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Paul M. Hazen
/s/ Robert L. Joss Director November 12, 1999
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Robert L. Joss
/s/ Sam H. Lee Director November 12, 1999
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Sam H. Lee
/s/ Douglas J. Mackenzie Director November 12, 1999
- -----------------------------
Douglas J. Mackenzie
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INDEX TO EXHIBITS
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Exhibit
Number Document
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4.1* Registrant's 1997 Stock Plan
4.2* Registrant's 1999 Stock Plan
4.3* Registrant's 1999 Employee Stock Purchase Plan
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation ("WSGR")
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants
23.2 Consent of WSGR (contained in Exhibit 5.1)
24.1 Power of Attorney (see page 4)
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(*) Previously filed as an exhibit to Registrant's Registration Statement on
Form S-1 (File No. 333-82799), declared effective September 21, 1999.
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Exhibit 5.1
November 12, 1999
E.piphany, Inc.
1900 South Norfolk Street, Suite 310
San Mateo, CA 94403
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on or about November 12, 1999 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended (the "Securities Act"), of an aggregate of
12,514,613 shares of your Common Stock reserved for issuance under your 1997
Stock Plan, 1999 Stock Plan and 1999 Employee Stock Purchase Plan (collectively,
the "Plans"). As your legal counsel, 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 such Common Stock under the Plans.
It is our opinion that, when issued and sold in the manner referred to in
the Plans and pursuant to the agreements which accompany the Plans, the Common
Stock issued and sold thereby 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 any Prospectuses constituting a part thereof,
and any amendments thereto. This opinion may be incorporated by reference in any
abbreviated registration statement filed pursuant to Item E under the General
Instructions to Form S-8 under the Securities Act with respect to the
Registration Statement.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
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Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8 of our reports dated June
19, 1999 with respect to the financial statements and schedule of E.piphany,
Inc. included in the Final Registration Statement No. 333-82799 (Form S-1),
filed with the Securities and Exchange Commission on September 21, 1999, and to
all references to our Firm included in this registration statement.
Arthur Andersen LLP
San Jose, California
November 11, 1999
