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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 23, 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.)
(ADDRESS OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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2000 NONSTATUTORY STOCK OPTION 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
AMOUNT MAXIMUM PROPOSED 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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2000 Nonstatutory Stock Option Plan 1,500,000 (1) $65.84375 (2) $98,765,625 (2) $26,075 (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) With Respect to the 1,500,000 Shares of Common Stock Available for Future
Grant Under the 2000 Nonstatutory Stock Option Plan, the Proposed Maximum
Offering Price Per Share was determined pursuant to Rule 457(c) to be the
average of the high and low price reported on the Nasdaq Stock Market on
October 18, 2000, which average was $65.84375 per share.
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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 of Form 10-Q for the quarter ended
June 30, 2000, filed with the Commission on August 14, 2000.
3. The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2000, filed with the Commission on May 8, 2000.
4. The Registrant's Form 8-K, filed pursuant to Section 13(a) of the
Exchange Act (SEC File No. 000-27183) for the May 31, 2000 merger with
eClass Direct, Inc., filed on June 15, 2000.
5. The Registrant's Form 8-K, filed pursuant to Section 13(a) of the
Exchange Act (SEC File No. 000-27183) for the May 31, 2000 merger with
Octane Software, Inc., filed on June 8, 2000.
6. The Registrant's Form 8-K, filed pursuant to Section 13(a) of the
Exchange Act (SEC File No. 000-27183) for the May 1, 2000 merger with
iLeverage Corporation, filed on May 31, 2000.
7. The Registrant's Form 8-K, filed pursuant to Section 13(a) of the
Exchange Act (SEC File No. 000-27183) for the March 14, 2000 Merger
Agreement with Octane Software, Inc., filed on March 28, 2000.
8. The Registrant's Form 8-K, filed pursuant to Section 13(a) of the
Exchange Act (SEC File No. 000-27183) for the January 4, 2000 merger
with RightPoint Software, Inc., filed on January 19, 2000.
9. The description of the Registrant's Common Stock which is contained in
the Registrant's registration statement on Form 8-A as filed pursuant
to section 12(g) of the Securities Exchange Act of 1934 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 deregisters 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.
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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.
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
10.1 2000 Nonstatutory Stock Option Plan and form of agreement
thereunder
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 on September 21, 1999, and
incorporated herein by reference.
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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 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 23rd day of October, 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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President, Chief Executive Officer and October 23, 2000
/s/ ROGER S. SIBONI Director (Principal Executive Officer)
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Roger S. Siboni
Chief Financial Officer (Principal
/s/ KEVIN J. YEAMAN Financial and Accounting Officer) October 23, 2000
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Kevin J. Yeaman
October 23, 2000
/s/ PAUL M. HAZEN Director
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Paul M. Hazen
October 23, 2000
/s/ ROBERT L. JOSS Director
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Robert L. Joss
October 23, 2000
/s/ SAM H. LEE Director
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Sam H. Lee
October 23, 2000
/s/ DOUGLAS J. MACKENZIE Director
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Douglas J. Mackenzie
October 23, 2000
/s/ GAYLE CROWELL Director
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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
10.1 2000 Nonstatutory Stock Option Plan and form of agreement
thereunder
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 on September 21, 1999, and
incorporated herein by reference.
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