<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH ___, 2000
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------------------
UNIFY CORPORATION
(Exact name of registrant as specified in its charter)
----------------------------
DELAWARE 94-2710559
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
181 METRO DRIVE, THIRD FLOOR
SAN JOSE, CALIFORNIA 95110
(408) 346-1100
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
----------------------------
REZA MIKAILLI
PRESIDENT AND CHIEF EXECUTIVE OFFICER
UNIFY CORPORATION
181 METRO DRIVE, THIRD FLOOR
SAN JOSE, CALIFORNIA 95110
(408) 346-1100
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
PAUL A. BLUMENSTEIN, ESQ.
Gray Cary Ware & Freidenrich LLP
400 Hamilton Avenue
Palo Alto, California 94301-1825
(650) 833-2000
- --------------------------------------------------------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time as described in the Prospectus after the effective date of this
Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / / _______________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / / _______________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER SHARE (1) PRICE (1) REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock ($0.001 par value) 216,931 shares $18.44 $4,000,207.64 $1,056.05
========================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(c) of the Securities Act
of 1933, and based on the average of the high and low sales
prices of the common stock, as reported on the Nasdaq National
Market on March 13, 2000.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SUCH SECTION 8(a),
MAY DETERMINE.
================================================================================
<PAGE>
================================================================================
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED MARCH 14, 2000
216,931 SHARES
UNIFY CORPORATION
COMMON STOCK
The 216,931 shares of common stock of Unify Corporation offered by this
Prospectus are outstanding shares that may be sold from time to time by
Evergreen Internet, Inc. Evergreen acquired these shares from Unify in exchange
for Evergreen stock acquired by Unify pursuant to two Stock Subscription
Agreements between Unify and Evergreen dated as of December 27, 1999 and January
7, 2000. Unify has agreed to register these shares under the Securities Act of
1933 and to use its best efforts to cause the registration statement covering
the shares to be declared effective and to remain effective until January 7,
2001, or until Evergreen has sold all of the shares held by it. Unify will not
receive any of the proceeds from the sale of the shares offered hereby.
Unify's common stock is quoted on the Nasdaq National Market under
the symbol "UNFY." On March 13, 2000 the last sale price of Unify's Common
Stock as reported on The Nasdaq National Market was $18.94.
----------------------------------
AN INVESTMENT IN UNIFY COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. PLEASE
CAREFULLY CONSIDER THE INFORMATION UNDER THE HEADING "RISK FACTORS" BEGINNING ON
PAGE 3.
----------------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES, OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is March 14, 2000.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
RISK FACTORS..............................................................3
ABOUT UNIFY...............................................................9
USE OF PROCEEDS...........................................................9
SELLING STOCKHOLDER.......................................................10
PLAN OF DISTRIBUTION......................................................10
LEGAL MATTERS.............................................................11
EXPERTS...................................................................11
WHERE TO FIND MORE INFORMATION............................................12
DOCUMENTS INCORPORATED BY REFERENCE.......................................12
</TABLE>
2
<PAGE>
RISK FACTORS
AN INVESTMENT IN THE COMMON STOCK OFFERED HEREBY INVOLVES A HIGH DEGREE
OF RISK AND THE COMMON STOCK SHOULD NOT BE PURCHASED BY PERSONS WHO CANNOT
AFFORD THE LOSS OF THEIR ENTIRE INVESTMENT. PURCHASERS SHOULD CAREFULLY CONSIDER
THE FOLLOWING RISK FACTORS IN CONJUNCTION WITH THE OTHER INFORMATION INCLUDED
AND INCORPORATED BY REFERENCE IN THIS PROSPECTUS BEFORE PURCHASING OR OTHERWISE
ACQUIRING THE COMMON STOCK OFFERED HEREBY.
THIS PROSPECTUS CONTAINS FORWARD-LOOKING STATEMENTS WITHIN THE MEANING
OF SECTION 27A OF THE SECURITIES ACT AND SECTION 21E OF THE EXCHANGE ACT. ACTUAL
RESULTS COULD DIFFER MATERIALLY FROM THOSE PROJECTED IN THESE FORWARD-LOOKING
STATEMENTS AS A RESULT OF A VARIETY OF FACTORS, INCLUDING THOSE SET FORTH BELOW
AND ELSEWHERE IN THIS PROSPECTUS.
WE HAVE A HISTORY OF OPERATING LOSSES, AND WE ARE IN THE PROCESS OF
TRANSITIONING TO A NEW PRODUCT LINE
We have incurred net losses in four of the past five fiscal years, and
revenues from our older client/server products decreased in four of the last
five fiscal years. Our ability to achieve revenue growth and profitability are
substantially dependent upon the success of our current and future Internet
products. License revenues from our Internet products were $11.8 million, $7.6
million, and $5.3 million for fiscal 1999, 1998 and 1997, respectively, and
represented 58%, 49% and 36% of total license revenues for those years,
respectively. However, our current or future Internet products may not achieve
market acceptance, and we may not achieve or maintain profitability.
OUR OPERATING RESULTS ARE SUBJECT TO FLUCTUATION
Our quarterly operating results have varied significantly in the past,
and we expect our operating results to fluctuate significantly in the future.
Among the factors that cause such fluctuation are:
- the size and timing of significant orders and their fulfillment;
- demand for our products;
- the number, timing and significance of product enhancements and
new product announcements by us and our competitors;
- seasonality;
- changes in pricing policies by us or our competitors;
- changes in our expense levels;
- changes in our sales incentive plans;
- customers' budgeting cycles;
- customer order deferrals in anticipation of enhancements or new
products offered by us or our competitors;
- product life cycles;
- the results of international expansion; and
- currency fluctuations.
3
<PAGE>
Because a significant portion of our revenues tend to be derived from orders
ranging in size from approximately $250,000 to $1 million, the timing of such
orders and their fulfillment has caused and is expected to continue to cause
material fluctuations in our operating results, particularly on a quarterly
basis.
OUR OPERATING RESULTS ARE DIFFICULT TO PREDICT
Due to the factors discussed above under the heading "Our Operating
Results Are Subject to Fluctuation," our quarterly revenues and operating
results are difficult to forecast. Revenues are also difficult to forecast
because the market for Internet and e-commerce application development software
is rapidly evolving, and our sales cycle, from initial evaluation to purchase
and the provision of maintenance services, is lengthy and varies substantially
from customer to customer. Because we normally ship products within a short time
after we receive an order, we typically do not have any material backlog. As a
result, achievement of our quarterly revenue objectives depends on our ability
to obtain new orders for shipment in that quarter. Furthermore, because many
customers place orders toward the end of a fiscal quarter, we generally
recognize a substantial portion of our revenues at the end of a quarter. As our
expense levels are based in significant part on our expectations as to future
revenues and are therefore relatively fixed in the short term, if revenue levels
fall below expectations, our operating results are likely to be adversely
affected disproportionately to such revenue shortfall.
OUR OPERATING RESULTS ARE SUBJECT TO SEASONALITY
Our operating results tend to be affected by seasonal trends. As a
result of efforts by our sales force to meet its fiscal year-end sales quotas,
we tend to experience relatively higher revenues in the last quarter of each
fiscal year, ending April 30, and relatively lower revenues in the first quarter
of the following fiscal year, ending July 31. We also expect to experience
relatively weaker demand in fiscal quarters ending July 31 and October 31 as a
result of reduced business activity in Europe during the summer months.
WE HAVE A LENGTHY SALES CYCLE
Our customers typically use our products to develop applications that
are critical to their business, and purchases of our products are often part of
a customer's larger effort to re-engineer its business process or implement the
delivery of applications over an enterprise network or the Internet. As a
result, the licensing and implementation of our software products generally
involve a significant commitment of management attention and resources by
prospective customers. Accordingly, our sales process is subject to delays
associated with the long approval process that typically accompanies significant
initiatives or capital expenditures. Such delays can adversely affect our
operating results and contribute to the difficulty of forecasting such results.
WE ARE DEPENDENT ON ACCEPTANCE OF NEW PRODUCTS AND THE GROWTH OF THE MARKET FOR
INTERNET AND E-COMMERCE SOFTWARE TOOLS
We expect our Internet products and related services to account for an
increasing percentage of our future revenues and are devoting a substantial
portion of our resources to these products. As a result, demand for our products
is dependent on the growth of e-commerce and the Internet. Our future revenues
will depend in significant part on the successful development, introduction and
customer acceptance of new and enhanced versions of our Internet products. If we
experience difficulties or delays in developing, introducing or selling such new
or enhanced versions of our Internet products, or if growth in e-commerce or the
Internet slows, our business and operating results will be adversely affected.
To date, only a limited number of our customers have completed the
development and deployment of Internet and e-commerce applications using our
Internet products. If our customers encounter difficulties in developing or
deploying Internet and e-commerce applications with Unify VISION and Unify eWave
Engine, the viability of these products and our reputation could be damaged. In
addition, we expect that a significant percentage of our future revenues will be
derived from sales of these newer products to customers that previously
purchased our client/server products. If these existing customers fail to
migrate to Internet and e-commerce applications, purchase competitive products,
or have difficulty deploying applications built with our Internet products, our
relationships with these customers and our operating results could be materially
adversely affected.
4
<PAGE>
WE EXPECT REVENUES FROM OUR MATURE PRODUCTS TO DECLINE
A significant portion of our revenues to date have been attributable to
our client/server products. Although revenues derived from the sales of these
products have declined in four of the last five fiscal years and are expected to
continue to decline, we expect such revenues to continue to represent an
important portion of our revenues for at least the next few years. Although we
are continuing to selectively invest in the development, sales, marketing and
support of such products, revenues from such products may decline faster than
expected, which would adversely affect our operating results.
OUR BUSINESS IS SUBJECT TO INTENSE COMPETITION
We have experienced and expect to continue to experience intense
competition. With the introduction of VISION AppServer and VISION AppBuilder in
May 1998, we began competing with Internet application server vendors including
Allaire and SilverStream. We also compete with e-commerce solution providers
such as IBM, Oracle, and Informix. We also continue to compete with vendors of
traditional enterprise network development tools, including Oracle and Sybase.
Companies offering products that compete with our Unify DataServer and
ACCELL/SQL products include Oracle, Sybase and Informix.
Many of our competitors have significantly greater financial,
technical, marketing and other resources than we do. Our competitors may be able
to respond more quickly to new or emerging technologies and changes in customer
requirements or devote greater resources to the development, promotion and sale
of their products than we can. Also, many current and potential competitors have
greater name recognition and more extensive customer bases than we do. We expect
to face additional competition as other established and emerging companies enter
the Internet application server, e-commerce, and enterprise network development
tools markets and as new products and technologies are introduced. Increased
competition could result in price reductions, fewer customer orders, reduced
gross margins and loss of market share, any one of which could materially
adversely affect our business or operating results. In addition, current and
potential competitors may make strategic acquisitions or establish cooperative
relationships among themselves or with third parties, thereby increasing the
ability of their products to address the needs of our current or prospective
customers. Accordingly, new competitors or alliances among current and new
competitors may emerge and rapidly gain significant market share. Such
competition could materially adversely affect our ability to sell additional
licenses and maintenance and support renewals. Further, competitive pressures
could require us to reduce the prices of our products and related services,
which could materially adversely affect our operating results.
OUR BUSINESS MAY BE AFFECTED BY RAPID TECHNOLOGICAL CHANGE
The market in which we compete is characterized by rapid technological
change, frequent introductions of new and enhanced products, changes in customer
demands and evolving industry standards. The introduction of products embodying
new technologies and the emergence of new industry standards can render existing
products obsolete and unmarketable. If we cannot successfully address the
increasingly sophisticated needs of our customers by:
- supporting existing and emerging hardware, software, database and
networking platforms; and
- introducing enhancements to Unify VISION and new products that
keep pace with such technological developments, emerging industry
standards and customer requirements;
our business will be harmed. Our business could also be harmed if:
- we are not be successful in developing and marketing enhancements
to Unify VISION and new products that respond to technological
change, evolving industry standards or customer requirements;
- we experience difficulties that delay or prevent the successful
development, introduction and sale of such enhancements or
products;
5
<PAGE>
- such enhancements or products do not adequately meet the
requirements of the marketplace or achieve market acceptance;
- the release of any future Unify VISION enhancements or new
products is delayed; or
- when released, such enhancements or new products fail to achieve
market acceptance.
In addition, the introduction or announcement of new product offerings or
enhancements by Unify or Unify's competitors may cause customers to defer or
forgo purchases of current versions of Unify VISION, which could have a material
adverse effect on our operating results.
OUR BUSINESS DEPENDS ON INDIRECT SALES CHANNELS
A significant portion of our revenues are derived from indirect sales
channels, including distributors and value-added resellers. Revenues from these
channels accounted for approximately 59% of our software license revenues for
the fiscal year ended April 30, 1999, 57% for the year ended April 30, 1998 and
48% for the year ended April 30, 1997. Our success therefore depends in part
upon the performance of our indirect sales channels, over which we have limited
influence. Our ability to achieve significant revenue growth in the future will
depend in part on our success in maintaining and expanding our indirect sales
channels worldwide. The loss of any of our major channel partners, either to
competing products offered by other companies or to products developed
internally by our channel partners, or the failure to attract effective new
channel partners could have a material adverse effect on our business.
WE FACE RISKS ASSOCIATED WITH INTERNATIONAL OPERATIONS AND SALES
Revenues derived from customers outside the United States accounted for
51% of our total revenues in the fiscal year ended April 30, 1999, 54% in the
year ended April 30, 1998 and 60% in the year ended April 30, 1997. As a key
component of our longer-term strategy, we plan to expand further into
international markets. If the revenues generated by international operations are
not adequate to offset the expense of establishing, expanding and maintaining
such operations, our business and operating results will be adversely affected.
Although we have had international operations for a number of years, we may
encounter unanticipated difficulties in marketing, selling or delivering our
products in these markets as our international business expands. In addition to
these uncertainties, there are certain risks inherent in doing business on an
international level, such as:
- unexpected changes in regulatory requirements;
- export restrictions, tariffs and other trade barriers;
- difficulties in staffing and managing foreign operations;
- longer payment cycles;
- problems in collecting accounts receivable;
- political instability;
- fluctuations in currency exchange rates;
- seasonal reductions in business activity during the summer months
in Europe and certain other parts of the world; and
- potentially adverse tax consequences;
6
<PAGE>
any of which could adversely impact the success of our international operations.
In addition, our subsidiaries in Europe and Japan operate using local
currencies. Although our intercompany accounts have not been materially affected
by foreign currency fluctuations in the past, our operating results or financial
condition could be adversely affected by decreases in the value of foreign
currencies relative to the U.S. dollar.
SOFTWARE DEFECTS OR RELEASE DELAYS COULD HARM OUR BUSINESS
Software products frequently contain errors or defects, especially when
first introduced or when new versions or enhancements are released. Although we
have not been materially affected by any such errors or defects in our software
products, we may encounter such errors or defects in the future. We may also
fail to detect such errors or defects despite testing by us and our customers,
which could result in product returns, liability claims, delay in market
acceptance, or unexpected re-programming costs, any of which which could have a
material adverse effect on our business, operating results, and financial
condition.
WE COULD BE SUBJECT TO PRODUCT LIABILITY CLAIMS
Our license agreements with our customers typically contain provisions
designed to limit our exposure to product liability claims. It is possible,
however, that these provisions may not be effective as a result of existing or
future federal, state or local laws or ordinances or unfavorable judicial
decisions. Accordingly, unknown defects in our software products could subject
us to product liability claims, which are likely to be substantial in light of
the use of these products in the development of core business applications. A
successful product liability claim brought against us could result in
significant legal costs and diversion of management time and attention and, if
we cannot successfully defend such a claim, could have a material adverse effect
on our operating results, and financial condition.
WE ARE DEPENDENT UPON KEY PERSONNEL
Our success depends largely on the efforts and abilities of our
executive officers and other key personnel. The loss of the services of any of
these key personnel or our inability to attract and retain additional senior
management could harm our business. In particular, the loss of the services of
Reza Mikailli, our President and Chief Executive Officer, would materially and
adversely affect us. We do not have key man insurance on the life of Mr.
Mikailli. Loss of other key management personnel could also have a material
adverse effect on Unify's business, operating results, and financial condition.
See "Business -- Employees."
The success of Unify also depends in large part upon the ability of
Unify to attract and retain qualified employees, particularly highly skilled
engineering, direct sales and support personnel. The competition for such
employees is intense. There can be no assurance that Unify will be successful in
attracting or retaining key personnel. Any failure by Unify to attract and
retain engineering, direct sales and support personnel would materially
adversely affect Unify's business, operating results, and financial condition.
See "Business -- Employees."
WE MAY BE UNABLE TO SUCCESSFULLY MANAGE OUR GROWTH
Any expansion we experience may significantly strain our management,
financial, customer support, operational and other resources. If we achieve
successful market acceptance of our current and future Internet products, we may
undergo a period of rapid growth. To accommodate this growth, we are continuing
to implement a variety of new and upgraded operating and financial systems,
procedures and controls, including the improvement of our internal management
systems. Any failure to expand these areas in an efficient manner could have a
material adverse effect on our business, operating results, and financial
condition. Moreover, our systems, procedures or controls may be inadequate to
support such expanded operations. Any rapid growth could require that we secure
additional facilities or expand in our current facilities, which could
significantly disrupt our operations and have a material adverse effect on our
operating results and financial condition.
7
<PAGE>
WE FACE RISKS RELATING TO THIRD-PARTY SOFTWARE THAT IS INCORPORATED INTO OUR
PRODUCTS
Some of our products incorporate software that we license from third
parties. Although we believe that the functionality provided by this licensed
software can be obtained from multiple sources or could be developed internally,
the termination or nonrenewal of any such third-party licenses, or a failure of
such third-party licensors to develop new or enhanced products in a timely
manner, could require us to seek alternative approaches to developing our
products, which could require:
- payment of increased license fees to other third-party licensors;
- internal development costs; or
- delays in the introduction of new products.
Despite such efforts or expenses, we might not be successful in providing the
same level of functionality as the products that incorporate present third-party
software. Such delays, increased costs or reduced functionality could materially
and adversely affect our business and operating results.
WE MAY NOT BE ABLE TO PROTECT OUR INTELLECTUAL PROPERTY RIGHTS
We rely on a combination of copyright, trademark and trade secret laws,
non-disclosure agreements and other intellectual property protection methods to
protect our proprietary technology. Despite these efforts, unauthorized parties
may attempt to copy our products or misappropriate information that we regard as
proprietary. Policing unauthorized use of our products is difficult, and while
we cannot determine the extent to which piracy of our software products exists,
software piracy is a persistent problem affecting our industry. In addition, the
laws of some foreign countries do not protect our proprietary rights as fully as
do U.S. laws. The means we employ to protect our proprietary rights may be
inadequate, or competitors could independently develop similar technology that
does not infringe our proprietary rights.
WE MAY BE SUBJECT TO CLAIMS OF INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY
RIGHTS
We may be subject to claims alleging infringement of third-party
patents or other intellectual property rights. If any such claim is asserted,
whether with or without merit we may not be successful in defending such claim
or in obtaining a license to the claimant's intellectual property on reasonable
terms. Our involvement in any intellectual property dispute could have a
material adverse effect on our business, operating results, and financial
condition. Adverse determinations in any litigation may subject us to
significant liabilities to third parties, require us to seek licenses from third
parties or prevent us from developing and selling our products.
WE MAY BE REQUIRED TO RAISE ADDITIONAL CAPITAL IN THE FUTURE
We believe that our current cash, cash equivalents and short-term
investments will be sufficient to meet our cash requirements during the next 12
months. Thereafter, depending on our operating results, we may require
additional equity or debt financing to meet our working capital or capital
equipment requirements. Such additional financing may not be available when
required or, if available, may not be on terms satisfactory to us. Moreover, the
sale of additional equity securities could result in dilution of our
stockholders.
OUR STOCK PRICE IS VOLATILE
Our stock price has been subject to significant volatility. During the
past 12 months, the market price of our stock has fluctuated from less than
$10.00 per share to more than $35.00 per share. A variety of factors could cause
the price of our stock to fluctuate, perhaps substantially, including:
- announcements of developments related to our business;
- fluctuations in our operating results and order levels or those
of our competitors;
8
<PAGE>
- general conditions in the Internet or e-commerce industries, the
computer industry or the worldwide economy;
- announcements of technological innovations;
- new products or product enhancements by us or our competitors;
- changes in financial estimates by securities analysts;
- developments in patent, copyright or other intellectual property
rights claimed by us or to which we might be subject; and
- developments in our relationships with its customers,
distributors and suppliers.
In addition, in recent years the stock market -- particularly the market for
shares of many Internet or e-commerce companies -- has experienced extreme price
fluctuations which have often been unrelated to the operating performance of
those companies. As our business becomes increasingly associated with electronic
commerce, we believe that the volatility of our stock will begin to resemble
that of other companies in the Internet and e-commerce industries.
ABOUT UNIFY
Unify develops, markets and supports Internet application server
solutions that enable information technology, or IT, organizations to deliver
electronic commerce applications by integrating enterprise, custom-built, and
packaged applications with the Internet.
Unify currently offers two products targeted toward the e-commerce
application development market. Unify VISION is an open, standards-based
Internet application server coupled with an object oriented, repository-based
application component framework. In September 1999, Unify introduced Unify eWave
Engine, an enterprise-caliber pure Java application server. Unify VISION and the
Unify eWave product family are referred to in this prospectus as Unify's
"Internet" products.
Unify also continues to enhance, market and support Unify DataServer, a
family of database management system products, and to market and support
ACCELL/SQL, a family of application development tools. These products are
referred to in this prospectus as Unify's "client/server" products. In addition
to software products, Unify offers training, consulting and maintenance services
to its customers.
Unify was incorporated in California in 1980 and reincorporated as a
Delaware corporation in April 1996. The principal executive offices of Unify are
located at 181 Metro Drive, Third Floor, San Jose, California 95110, and its
telephone number at that location is (408) 346-1100.
USE OF PROCEEDS
Unify will not receive any proceeds from the sale of shares of common
stock hereunder by the selling stockholder and all proceeds will go to the
selling stockholder to be used for its own purposes. However, in the event
proceeds of the sales by the selling stockholder of the 216,931 shares of our
common stock exceed $5,000,000, the selling stockholder has agreed to pay us an
amount equal to the excess, which amount shall be used for general corporate
purposes.
9
<PAGE>
SELLING STOCKHOLDER
The following table lists the selling stockholder, the number of shares
of Unify common stock known by Unify to be beneficially owned by the selling
stockholder, the number of shares expected to be sold by the selling
stockholder, and the number of shares which the selling stockholder will own
after the offering, assuming the sale of all the shares expected to be sold.
<TABLE>
<CAPTION>
Shares Owned Before Shares Owned After
Selling Stockholder Offering Shares to be Offered Offering
- --------------------------- ------------------- -------------------- ------------------
<S> <C> <C> <C>
EVERGREEN INTERNET, INC. 216,931 216,931 0
</TABLE>
PLAN OF DISTRIBUTION
We have been advised by the selling stockholder that it may sell all or
a portion of its shares of common stock. The selling stockholder plans to sell
on the Nasdaq National Market, or otherwise. The selling stockholder may sell
its shares:
- at prices and on terms prevailing at the time of sale;
- at prices related to the then current market price; or
- in negotiated transactions.
The selling stockholder may sell its shares by one or more of the
following methods:
- block trades in which the broker or dealer so engaged will
attempt to sell the shares as agent, but may position and resell
a portion of the block as principal to facilitate the
transaction;
- purchases by a broker or dealer as principal and resale by such
broker or dealer for its own account pursuant to this prospectus;
- on over-the-counter distribution in accordance with the rules of
the Nasdaq National Market;
- ordinary brokerage transactions and transactions in which the
broker solicits purchasers; and
- privately negotiated transactions.
There is no assurance that selling stockholder will offer or sell any
or all of its shares of common stock registered under this prospectus.
The selling stockholder, any underwriter, any broker-dealer or any
agent that participates with the selling stockholder in the distribution of the
shares may be deemed to be "underwriter" within the meaning of the Securities
Act. As a result, any discounts, commissions or concessions received by them and
any profit on the resales of the shares purchased by them may be deemed to be
underwriting commissions under the Securities Act.
We will pay expenses, other than underwriting discounts and
commissions, if any, incurred in connection with the offering and sale to the
public of shares by the selling stockholder, including, without limitation, all
registration and filing fees, printing expenses, transfer agents' and
registrars' fees, and the fees and disbursements of our outside counsel and
independent accountants.
10
<PAGE>
We agreed with the selling stockholders to keep the registration
statement of which this prospectus constitutes a part effective until the
earlier of:
- January 7, 2001; or
- such time as all of the shares have been sold by the selling
stockholders.
We intend to de-register any of the shares not sold by the selling
stockholder at the end of such period. At such time, however, any unsold shares
may be freely tradable subject to compliance with Rule 144 of the Securities
Act.
We have agreed to indemnify in certain circumstances the selling
stockholder and any underwriter and certain control and other persons related to
the foregoing persons against certain liabilities, including liabilities under
the Securities Act. The selling stockholder has agreed to indemnify in certain
circumstances Unify and certain related persons against certain liabilities,
including liabilities under the Securities Act.
LEGAL MATTERS
The legality of the Shares is being passed upon by Gray Cary Ware &
Freidenrich LLP, Palo Alto, California.
EXPERTS
The financial statements incorporated in this prospectus by
reference from the Company's Annual Report on Form 10-K for the year ended
April 30, 1999 have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their report, which is incorporated herein by
reference, and has been so incorporated in reliance on report of such firm
given upon their authority as experts in accounting and auditing.
11
<PAGE>
WHERE TO FIND MORE INFORMATION
Unify is subject to the informational requirements of the Securities
Exchange Act of 1934, or the Exchange Act, and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission. The reports, proxy statements and other information filed by Unify
with the SEC may be inspected and copied at the public reference facilities
maintained by the SEC at Judiciary Plaza, Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the Regional Offices of the SEC located at
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60611 and 7 World Trade Center, Suite 1300, New York, New York 10048.
Copies of such material can also be obtained by mail from the Public Reference
Section of the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549. Unify's
Common Stock is traded on The Nasdaq National Market. Reports and other
information concerning Unify can also be inspected at the offices of the
National Association of Securities Dealers, Inc., Market Listing Section, 1735 K
Street, N.W., Washington, D.C. 20006. Such reports and other information may
also be inspected without charge at a Web site maintained by the SEC. The
address of the site is http://www.sec.gov.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents filed with the SEC by Unify pursuant to the
Exchange Act are incorporated herein by reference:
1. the definitive Proxy Statement for Unify's 1999 Annual Meeting of
Stockholders filed with the SEC on August 24, 1999 pursuant to
Regulation 14A;
2. the Quarterly Report on Form 10-Q for the quarter ended October
31, 1999, filed with the SEC on December 15, 1999;
3. the Annual Report on Form 10-K for the year ended April 30, 1999,
filed with the SEC on July 19, 1999; and
4. the Registration Statement on Form 8-A containing the description
of Unify's Common Stock filed under the Exchange Act, including
any amendment or report filed for the purpose of updating such
description.
All documents and reports subsequently filed by Unify pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the termination of this offering shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of filing of such documents or reports. Any statement contained in a
document incorporated by reference or deemed to be 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. Unify will provide without
charge to each person to whom this Registration Statement is delivered, upon
written or oral request, a copy of any or all of the foregoing documents
incorporated by reference in this Registration Statement (other than any
exhibits thereto). Requests for such documents should be directed to Unify
Corporation at 3927 Lennane Drive, Sacramento, California 95834 (telephone
number (916) 928-6400), Attn.: Investor Relations.
12
<PAGE>
WE HAVE NOT AUTHORIZED ANYONE TO GIVE ANY INFORMATION OR MAKE ANY REPRESENTATION
OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS.
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS PROSPECTUS. THE
INFORMATION IN THIS PROSPECTUS IS CORRECT AS OF THE DATE OF THIS
PROSPECTUS. DELIVERY OF THIS PROSPECTUS AFTER THE DATE INDICATED
BELOW DOES NOT MEAN THAT THE INFORMATION IS STILL CORRECT.
216,931 SHARES
UNIFY CORPORATION
COMMON STOCK
--------------
PROSPECTUS
--------------
March 14, 2000
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the costs and expenses in connection
with the sale and distribution of the securities being registered, other than
underwriting discounts and commissions. All of the amounts shown are estimates
except the Securities and Exchange Commission registration fees and Nasdaq
filing fee.
<TABLE>
<CAPTION>
To be Paid
By The
Registrant
------------
<S> <C>
SEC Registration Fee............................................... $ 1,056.05
Nasdaq filing fee.................................................. 2,169
Accounting fees and expenses....................................... 1,000
Legal fees and expenses............................................ 10,000
Miscellaneous expenses.............................................
Total..................................................... $14,225.05
----------
----------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102(b) of the Delaware General Corporation Law authorizes a
corporation to provide in its Certificate of Incorporation that a director of
the corporation shall not be personally liable to corporation or its
stockholders for monetary damages for breach or alleged breach of the director's
"duty of care." While this statute does not change directors' duty of care, it
enables corporations to limit available relief to equitable remedies such as
injunction or rescission. The statute has no effect on a director's duty of
loyalty or liability for acts or omissions not in good faith or involving
intentional misconduct or knowing violations of law, illegal payment of
dividends or stock redemptions or repurchases, or for any transaction from which
the director derives an improper personal benefit. As permitted by the statute,
the Registrant has adopted provisions in its Certificate of Incorporation which
eliminate to the fullest extent permissible under Delaware law the personal
liability of its directors to the Registrant and its stockholders for monetary
damages for breach or alleged breach of their duty of care.
Section 145 of the General Corporation Law of the State of Delaware
provides for the indemnification of officers, directors, employees and agents of
a corporation. The Bylaws of the Registrant provide for indemnification of its
directors, officers, employees and agents to the full extent permitted by
Delaware law, including those circumstances in which indemnification would
otherwise be discretionary under Delaware law. The Registrant's Bylaws also
empower it to enter into indemnification agreements with its directors and
officers and to purchase insurance on behalf of any person whom it is required
or permitted to indemnify. The Registrant has entered into agreements with its
directors and certain of its executive officers that require the Registrant to
indemnify such persons to the fullest extent permitted under Delaware law
against expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred (including expenses of a derivative action) in connection
with any proceeding, whether actual or threatened, to which any such person may
be made a party by reason of the fact that such person is or was a director or
an executive officer of the Registrant or any of its affiliated enterprises. The
indemnification agreements also set forth certain procedures that will apply in
the event of a claim for indemnification thereunder.
Section 145 of the General Corporation Law of the State of Delaware
provides for indemnification in terms sufficiently broad to indemnify such
individuals, under certain circumstances, for liabilities (including
reimbursement of expenses incurred) arising under the Securities Act.
See also the undertakings set out in response to Item 17 herein.
II-1
<PAGE>
ITEM 16. EXHIBITS.
The following exhibits are filed with this Registration Statement:
<TABLE>
<CAPTION>
Exhibit No. Description
- ------------------- ------------------------------------------------------------
<S> <C>
5.1 Opinion of Gray Cary Ware & Freidenrich LLP.
23.1 Consent of Deloitte & Touche, LLP, independent auditors.
23.2 Consent of Gray Cary Ware & Freidenrich LLP (included in
Exhibit 5.1).
24.1 Power of Attorney (included in the Signature Page
contained in Part II of the Registration Statement).
</TABLE>
II-2
<PAGE>
ITEM 17. UNDERTAKINGS.
1. The undersigned Registrant hereby undertakes:
a. 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 of 1933 (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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Securities and
Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement;
iii. 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;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
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 Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
b. 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 therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
c. 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.
2. 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.
3. The undersigned Registrant hereby undertakes to deliver or cause to
be delivered with the prospectus, to each person to whom the prospectus is sent
or given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X are not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
4. 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 SEC 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
II-3
<PAGE>
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.
5. The undersigned Registrant hereby undertakes that:
a. For the purposes of determining any liability under the
Securities Act, the information omitted from the form of prospectus filed as
part of this registration statement in reliance upon Rule 430A and contained
in a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of the
registration statement as of the time it was declared effective.
b. For the purposes of determining any liability under the
Securities Act, each post-effective amendment that contains a form of
prospectus 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.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of San Jose, State of California on March 14, 2000.
UNIFY CORPORATION
By: /s/ Reza Mikailli
-------------------------------------
Reza Mikailli
President and Chief Executive Officer
POWER OF ATTORNEY
Each of the officers and directors of Unify Corporation whose signature
appears below hereby constitutes and appoints Reza Mikailli and Gary Pado, and
each of them, their true and lawful attorneys and agents, with full power of
substitution to sign and execute on behalf of the undersigned any amendment or
amendments to the Registration Statement on Form S-3 and to perform any acts
necessary in order to file such amendments, and each of the undersigned does
hereby ratify and confirm all that said attorneys and agents, or their
substitutes, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below on March 14, 2000 by the
following persons in the capacities indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Reza Mikailli President, Chief Executive Officer, and March 14, 2000
- ------------------------------------------- Director (Principal Executive Officer)
Reza Mikailli
/s/ Gary Pado Vice President, Finance and Chief Financial March 14, 2000
- ------------------------------------------- Officer (Principal Financial and Accounting
Gary Pado Officer)
/s/ Kurt M. Garbe Director March 14, 2000
- -------------------------------------------
Kurt M. Garbe
/s/ Steven D. Whiteman Director March 14, 2000
- -------------------------------------------
Steven D. Whiteman
</TABLE>
II-5
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description
- ------------------- ------------------------------------------------------------
<S> <C>
5.1 Opinion of Gray Cary Ware & Freidenrich LLP.
23.1 Consent of Deloitte & Touche, LLP, independent auditors.
23.2 Consent of Gray Cary Ware & Freidenrich LLP (included in
Exhibit 5.1).
24.1 Power of Attorney (included in the Signature Page
contained in Part II of the Registration Statement).
</TABLE>
II-6
<PAGE>
EXHIBIT 5.1
[Gray Cary Ware & Freidenrich LLP Letterhead]
March 14, 2000
Securities and Exchange Commission
450 Fifth Street, N.W
Washington, D.C. 20549
RE: UNIFY CORPORATION
REGISTRATION STATEMENT ON FORM S-3
Ladies and Gentlemen:
As legal counsel for Unify Corporation, a Delaware corporation (the "Company"),
we are rendering this opinion in connection with the preparation and filing of a
registration statement on Form S-3 (the "Registration Statement") relating to
the registration under the Securities Act of 1933, of 216,931 shares of Common
Stock, par value $0.001 per share (the "Shares"), to be issued by Unify.
We have examined such instruments, documents and records as we deemed relevant
and necessary for the basis of our opinion hereinafter expressed. In such
examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies.
Based on such examination, we are of the opinion that the Shares are duly
authorized, validly issued, fully paid, and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement referred to above and the use of our name wherever it
appears in said Registration Statement.
This opinion is to be used only in connection with the sale of the Shares while
the Registration Statement is in effect.
Respectfully submitted,
/s/ Gray Cary Ware & Freidenrich LLP
GRAY CARY WARE & FREIDENRICH LLP
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Unify Corporation on Form S-3 of our report dated May 18, 1999, appearing in the
Annual Report on Form 10-K of Unify Corporation for the year ended April 30,
1999 and to the reference to us under the heading "Experts" in the Prospectus,
which is part of this Registration Statement.
/s/ Deloitte & Touche LLP
San Jose, California
March 13, 2000
