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As filed with the Securities and Exchange Commission on June 16, 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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DELAWARE 1900 SOUTH NORFOLK STREET, SUITE 310 77-0443392
(STATE OF INCORPORATION) SAN MATEO, CALIFORNIA 94403 (I.R.S. EMPLOYER IDENTIFICATION NO.)
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(ADDRESS, INCLUDING ZIP CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
eCLASS DIRECT, INC. 1998 STOCK PLAN
(FULL TITLE OF THE PLAN)
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:
AARON J. ALTER, ESQ.
N. 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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PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO TO BE OFFERING PRICE AGGREGATE REGISTRATION
BE REGISTERED REGISTERED PER SHARE OFFERING PRICE FEE
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eClass Direct, Inc. 1998 Stock Plan 46,383(1) $4.30(2) $199,627(2) $53(2)
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(1) This Registration Statement shall also cover any additional shares of Common
Stock which become issuable under the Plans being registered pursuant to
this Registration Statement 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
Registrant's outstanding shares of Common Stock.
(2) Computed in accordance with Rule 457(h) under the Securities Act of 1933, as
amended (the "Securities Act"), solely for the purpose of calculating the
registration fee. With respect to the 46,383 shares subject to outstanding
options to purchase Common Stock under the Plan, the proposed maximum
offering price per share is equal to the weighted average exercise price of
$4.30 per share pursuant to Rule 457(h) under the Securities Act.
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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 Annual Report on Form 10-K, filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act") (SEC File No. 000-27183), on
March 30, 2000.
2. The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2000, filed with the Commission on May 8, 2000.
3. The Registrant's Form 8-K, filed pursuant to Section 13(a) of
the Exchange Act (SEC File No. 000-27183), on January 19, 2000.
4. The Registrant's Form 8-K, filed pursuant to Section 13(a) of
the Exchange Act (SEC File No. 000-27183), on March 28, 2000.
5. The Registrant's Form 8-K, filed pursuant to Section 13(a) of
the Exchange Act (SEC File No. 000-27183), on May 31, 2000.
6. The Registrant's Form 8-K, filed pursuant to Section 13(a) of
the Exchange Act (SEC File No. 000-27183), on June 8, 2000.
7. The Registrant's Form 8-K, filed pursuant to Section 13(a) of
the Exchange Act (SEC File No. 000-27183), on June 15, 2000.
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* Specimen Common Stock Certificate
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation ("WSGR"), with respect to the legality of the
securities being registered.
23.1 Consent of Arthur Andersen, LLP, Independent Public Accountants
23.2 Consent of KPMG LLP, Independent Accountants
23.3 Consent of WSGR (contained in Exhibit 5.1)
24.1 Power of Attorney (see page 4)
99.1 eClass Direct, Inc. 1998 Stock Plan
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* - Previously filed as an exhibit to Registrant's Registration
Statement on Form S-1 (File No. 333-82799), declared effective on September 21,
1999, and incorporated herein by reference.
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
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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 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.
[ Remainder of Page Intentionally Left Blank ]
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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 San Mateo, State of
California, on the 16th day of June, 2000.
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 June 16, 2000
----------------------------------- Director (Principal Executive Officer)
Roger S. Siboni
/s/ Kevin J. Yeaman Chief Financial Officer (Principal
----------------------------------- Financial and Accounting Officer) June 16, 2000
Kevin J. Yeaman
/s/ Paul M. Hazen Director June 16, 2000
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Paul M. Hazen
/s/ Robert L. Joss Director June 16, 2000
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Robert L. Joss
Director June 16, 2000
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Sam H. Lee
/s/ Douglas J. Mackenzie Director June 16, 2000
-----------------------------------
Douglas J. Mackenzie
/s/ Gayle Crowell Director June 16, 2000
-----------------------------------
Gayle Crowell
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INDEX TO EXHIBITS
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Exhibit
Number Document
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4.1* Specimen Common Stock Certificate
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation ("WSGR"), with respect to the legality of the
securities being registered.
23.1 Consent of Arthur Andersen, LLP, Independent Public Accountants
23.2 Consent of KPMG, LLP, Independent Accountants
23.3 Consent of WSGR (contained in Exhibit 5.1)
24.1 Power of Attorney (see page 4)
99.1 eClass Direct Inc., 1998 Stock Plan
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* - Previously filed as an exhibit to Registrant's Registration
Statement on Form S-1 (File No. 333-82799), declared effective on September 21,
1999, and incorporated herein by reference.
