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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 1, 2000
REGISTRATION NO. 333-________
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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> <C>
DELAWARE 1900 SOUTH NORFOLK STREET, SUITE 310 77-0443392
(STATE OF INCORPORATION) SAN MATEO, CALIFORNIA 94403 (I.R.S. EMPLOYER IDENTIFICATION NO.)
(ADDRESS, INCLUDING ZIP CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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1999 STOCK PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLE OF THE PLANS)
ROGER S. SIBONI
PRESIDENT AND CHIEF EXECUTIVE OFFICER
E.PIPHANY, INC.
1900 SOUTH NORFOLK STREET, SUITE 310
SAN MATEO, CALIFORNIA 94403
(650) 356-3800
(NAME, ADDRESS, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPY TO:
NEIL ANTHONY JEFFRIES, 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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TITLE OF SECURITIES TO AMOUNT PROPOSED PROPOSED AMOUNT OF
BE REGISTERED TO BE MAXIMUM MAXIMUM REGISTRATION
REGISTERED OFFERING PRICE AGGREGATE FEE
PER SHARE OFFERING PRICE
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<S> <C> <C> <C> <C>
1999 Stock Plan 1,081,964 shares(1) $163.6875(2) $177,103,982.25(2) $46,755.45
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1999 Employee Stock Purchase Plan 1,081,964 shares(1) $163.6875(2) $177,103,982.25(2) $46,755.45
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Total 2,163,928 shares $354,207,964.50 $93,510.90
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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) The Proposed Maximum Offering Price Per Share was determined pursuant to
Rule 457(h) under the Securities Act to be equal to $163.6875 per share,
the average of the high and low price of the Registrant's Common Stock as
reported on the Nasdaq Stock Market on February 22, 2000.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
EXPLANATORY NOTE:
This Registration Statement is filed with respect to additional shares
of Common Stock that may be issued under the Registrant's 1999 Stock Plan and
the 1999 Employee Stock Purchase Plan as a result of certain automatic annual
increases in the number of authorized shares for issuance under the Plans.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents and information filed with the Securities and
Exchange Commission (the "Commission") by the Registrant are incorporated herein
by reference:
1. The Registrant's Prospectus, filed with the Commission on January 20,
2000, pursuant to Rule 424(b) promulgated under the Securities Act of 1933, as
amended (the "Securities Act").
2. The Registrant's Current Report on Form 8-K filed on January 19, 2000
including any amendment or report filed for the purpose of updating such
description.
3. The Registrant's Quarterly Report on Form 10-Q for the quarter's
period ended September 30, 1999.
4. The description of the Registrant Common Stock as set forth in the
Registration Statement filed by the Company on Form 8-A, as declared effective
by the Commission on August 30, 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
The validity of the shares of Common Stock offered pursuant to this
Registration Statement will be passed upon by Wilson Sonsini Goodrich & Rosati,
Professional Corporation, Palo Alto, California. WS Investments, an investment
partnership composed of some current and former members of and persons
associated with Wilson Sonsini Goodrich & Rosati, Professional Corporation, as
well as several individual attorneys of this firm, beneficially own 78,779
shares of the Registrant's Common Stock.
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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 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.
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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5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation ("WSGR"), with respect to the legality of the
securities being registered
10.1* Registrant's 1999 Stock Plan
10.2* Registrant's 1999 Employee Stock Purchase Plan
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants
23.2 Consent of KPMG LLP, Independent Auditors
23.3 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 by the Securities and
Exchange Commission on 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
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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 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 items described in Item 6 of Part II of this
Registration Statement, 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 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the city of San Mateo, state of California, on the 1st day
of March, 2000.
E.piphany, Inc.
By: /s/ Roger S. Siboni
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Roger S. Siboni
President, Chief Executive Officer
and Chairman of the Board
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 (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.
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.
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SIGNATURE TITLE DATE
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/s/ Roger S. Siboni President, Chief Executive Officer March 1, 2000
- ----------------------------- and Chairman of the Board
Roger S. Siboni (Principal Executive Officer)
/s/ Kevin J. Yeaman Chief Financial (Principal March 1, 2000
- ----------------------------- Financial and Accounting Officer)
Kevin J. Yeaman
/s/ Paul M. Hazen Director March 1, 2000
- -----------------------------
Paul M. Hazen
/s/ Robert L. Joss Director March 1, 2000
- -----------------------------
Robert L. Joss
/s/ Sam H. Lee Director March 1, 2000
- -----------------------------
Sam H. Lee
/s/ Douglas J. Mackenzie Director March 1, 2000
- -----------------------------
Douglas J. Mackenzie
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INDEX TO EXHIBITS
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Exhibit
Number Document
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5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation ("WSGR"), with respect to the legality of the
securities being registered
10.1* Registrant's 1999 Stock Plan
10.2* Registrant's 1999 Employee Stock Purchase Plan
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants
23.2 Consent of KPMG LLP, Independent Auditors
23.3 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 by the Securities and
Exchange Commission on September 21, 1999.
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EXHIBIT 5.1
March 1, 2000
E.piphany, Inc.
1900 South Norfolk Street, Suite 310
San Mateo, California 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 February __, 2000
(the "Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended (the "Securities Act"), of an increase of an
aggregate of 2,163,928 shares of your Common Stock to the Common Stock reserved
for issuance under your 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 ARTHUR ANDERSEN LLP, 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
December 20, 1999 included in the Final Registration Statement No. 333-94033
(Form S-1), filed with the Securities and Exchange Commission on January 20,
2000.
/s/ Arthur Andersen LLP
San Jose, California
February 23, 2000
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EXHIBIT 23.2
CONSENT OF KPMG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the registration statement (No.
333- _______) on Form S-8 of E.piphany, Inc. of our report dated September 10,
1999 on the consolidated financial statements of RightPoint Software, Inc. and
subsidiary as of June 30, 1998 and 1999, and the related consolidated statements
of operations and comprehensive loss, stockholders' equity, and cash flows for
each of the years in the two-year period ended June 30, 1999, which report
appears in the Form S-1 (No. 333-94033), filed with the Securities and Exchange
Commission on January 20, 2000.
/s/ KPMG LLP
Mountain View, California
February 29, 2000
