As filed with the Securities and Exchange Commission on May 26, 2000
Registration No. 33-
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
ClickAction Inc.
(Exact name of registrant as specified in its charter)
Delaware 77-0195362
(State of Incorporation) (I.R.S. Employer Identification No.)
-------------------
2197 E. Bayshore Road
Palo Alto, California 94303
(650) 473-3600
(Address of principal executive offices)
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1999 Employee Stock Purchase Plan
(Full title of the plans)
Gregory W. Slayton
Chief Executive Officer
ClickAction Inc.
2197 E. Bayshore Road
Palo Alto, California 94303
(650) 473-3600
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
James Kitch, Esq.
COOLEY GODWARD LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, California 94306-2155
(650) 843-5000
--------------------
<PAGE>
CALCULATION OF REGISTRATION FEE
=============================================================================
Title of Amount Proposed Maximum Proposed Maximum Amount of
Securities to to be Offering Price Aggregate Registration
be Registered Registered per Share(1) Offering Price (1) Fee
- -----------------------------------------------------------------------------
Common Stock,
par value 1,000,000 $11.8125 $11,812,500 $3,118.50
$.001 per shares
share
=============================================================================
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h). The price per share and aggregate
offering price are based upon the average of the high and low prices of
Registrant's Common Stock on May 24, 2000 as reported on the Nasdaq National
Market.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by ClickAction Inc. (the "Registrant") with the
Securities and Exchange Commission are incorporated by reference into this
Registration Statement:
(a) The Registrant's latest annual report on Form 10-KSB filed pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
(b) All other reports filed pursuant to Sections 13(a) or 15(d) of the Exchange
Act since the end of the fiscal year covered by the annual reports, the
prospectus or the registration statement referred to in (a) above.
(c) The description of the Registrant's Common Stock which is contained in a
registration statement filed under the Exchange Act, including any amendment
or report filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act 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 a part of this registration
statement from the date of the filing of such reports and 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.
Under Section 145 of the Delaware General Corporation Law the Registrant has
broad powers to indemnify its directors and officers against liabilities they
may incur in such capacities, including liabilities under the Securities Act of
1933, as amended (the "Securities Act"). The Registrant's By-laws require the
Registrant to indemnify its directors and executive officers, and permit the
Registrant to indemnify its other officers, employees and other agents, to the
extent permitted by Delaware law. Under the Registrant's By-laws, indemnified
parties are entitled to indemnification for negligence, gross negligence and
otherwise to the fullest extent permitted by law. The By-laws also require the
Registrant to advance litigation expenses in the case of stockholder derivative
actions or other actions, against an undertaking by the indemnified party to
repay such advances if it is ultimately determined that the indemnified party is
not entitled to indemnification.
The Registrant has entered into indemnity agreements with each of its directors
and executive officers. Such indemnity agreements contain provisions which are
in some respects broader than the specific indemnification provisions contained
in Delaware law. The Registrant also maintains an insurance policy for its
directors and executive officers insuring against certain liabilities arising
in their capacities as such.
Item 7. EXCEPTION FROM REGISTRATION CLAIMED.
Not Applicable.
Item 8. EXHIBITS
<PAGE>
Exhibit
Number
4.1 Certificate of Incorporation of the Registrant.
4.2 Certificate of Designation of Series A Junior Participating Preferred Stock
of the Registrant.(1)
4.3 Bylaws of the Registrant.(2)
5 Opinion of Cooley Godward LLP .
23.1 Consent of KPMG LLP.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5 to this
Registration Statement.
24 Power of Attorney is contained on the signature pages.
99.1 1999 Employee Stock Purchase Plan.(3)
(1) Incorporated by reference from the Registrant's Form 8-K (No. 000-26008),
filed Jun 15, 1998.
(2) Incorporated by reference from the Registrant's Registration Statement of
Form S-1 (333-91898), filed May 4, 1995.
(3) Incorporated by reference from the Registrant's Definitive Proxy Statement
for the 2000 Annual Meeting of the Stockholders, filed April 17, 2000.
Item 9. UNDERTAKINGS
The undersigned registrant hereby undertakes to:
(a)
(1) File, during any period in which offers or sells securities, a post-
effective amendment to this registration statement to:
(i) Include any prospectus required by section 10(a)(3) of the Securities Act;
(ii) Reflect in the prospectus any facts or events which, individually or
together represent a fundamental change in the information in the registration
statement. Notwithstanding the foregoing, any increase or decrease in the
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 wit the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20% change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) Include any additional or changed material information on the plan of
distribution.
(2) For determining liability under the Securities Act, treat each post-
effective amendment as a new registration statement offered, and the
offering of the securities at that time to be the initial bona fide
offering.
(3) File a post-effective amendment to remove from registration any of the
securities that remain unsold at the end of the offering.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant 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 Palo Alto, State of California, on May 26, 2000.
CLICKACTION INC.
By: /s/ Gregory W. Slayton
---------------------------
Gregory W. Slayton
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Gregory W. Slayton and Sharon Chiu, and each or
any one of them, his or her true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said attorneys-in-
fact and agents, or any of them, or their or his or her substitutes or
substitute, may lawfully do or cause to be done by virtue hereof.
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.
Signature Title Date
/s/ Gregory W. Slayton President, Chief
- ---------------------- Executive Officer May 26, 2000
(GREGORY W. SLAYTON) and Director
/s/ Sharon Chiu Vice President of
- ---------------------- Operation, Chief May 26, 2000
(SHARON CHIU) Financial Officer
and Secretary (Principal
Financial Officer)
/s/ David P. Mans
- --------------------- Chairman of the Board May 26, 2000
(DAVID P. MANS)
/s/ Gary J. Daichendt
- --------------------- Director May 26, 2000
(GARY J. DAICHENDT)
/s/ Howard M. Love
- --------------------- Director May 26, 2000
(HOWARD M. LOVE, JR.)
<PAGE>
/s/ Edwin R. Niehaus
- --------------------- Director May 26, 2000
(EDWIN R. NEIHAUS)
/s/ Donald F. Wood
- --------------------- Director May 26, 2000
(DONALD F. WOOD)
/s/ Emerick M. Woods
- --------------------- Director May 26, 2000
(EMERICK M. WOODS)
<PAGE>
EXHIBIT INDEX
Exhibit
Number
4.1 Certificate of Incorporation of the Registrant .
4.2 Certificate of Designation of Series A Junior Participating Preferred
Stock of the Registrant.(1)
4.3 Bylaws of the Registrant.(2)
5 Opinion of Cooley Godward LLP .
23.1 Consent of KPMG LLP.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5 to this
Registration Statement.
24 Power of Attorney is contained on the signature pages.
99.1 1999 Employee Stock Purchase Plan.(3)
(1) Incorporated by reference from the Registrant's Form 8-K (No. 000-26008),
filed Jun 15, 1998.
(2) Incorporated by reference from the Registrant's Registration Statement of
Form S-1 (333-91898), filed May 4, 1995.
(3) Incorporated by reference from the Registrant's Definitive Proxy Statement
for the 2000 Annual Meeting of the Stockholders, filed April 17, 2000.
<PAGE>
EXHIBIT 4.1
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
CLICKACTION INC.
CLICKACTION INC., a corporation organized and existing under and by virtue of
the General Corporation Law of the State of Delaware (the "Corporation"), does
hereby certify:
FIRST: The name of the Corporation is CLICKACTION INC..
SECOND: The date on which the Certificate of Incorporation of the Corporation
was originally filed with the Secretary of State of the State of Delaware is May
3, 1995.
THIRD: The Board of Directors of the Corporation, acting in accordance with
the provisions of Sections 141 and 242 of the General Corporation Law of the
State of Delaware, adopted resolutions amending its Certificate of Incorporation
as follows:
Article IV, Section A shall be amended and restated to read in its entirety as
follows:
A. This Corporation is authorized to issue two classes of stock to be
designated, respectively, "Common Stock" and "Preferred Stock." The total
number of shares which the corporation is authorized to issue is Sixty-Two
Million (62,000,000) shares. Sixty Million (60,000,000) shares shall be Common
Stock, each having a par value of one-tenth of one cent ($.001). Two Million
(2,000,000) shares shall be Preferred Stock, each having a par value of one-
tenth of one cent ($.001).
FOURTH: Thereafter pursuant to a resolution of the Board of Directors, this
Certificate of Amendment was submitted to the stockholders of the Corporation
for their approval, and was duly adopted in accordance with the provisions of
Section 242 of the General Corporation Law of the State of Delaware.
FIFTH: All other provisions of the Certificate of Incorporation shall remain
in full force and effect.
IN WITNESS WHEREOF, CLICKACTION INC. has caused this Certificate of Amendment to
be signed by its President and Chief Executive Officer, Gregory W. Slayton and
attested to by its Secretary, Sharon Chiu, this 22nd day of May 22nd, 2000.
CLICKACTION INC.
By:/s/ Gregory W. Slayton
----------------------
Gregory W. Slayton
President and Chief Executive Officer
ATTEST:
/s/ Sharon Chiu
- ----------------------
Sharon Chiu
Secretary
<PAGE>
EXHIBIT 5
May 23, 2000
ClickAction Inc.
2197 E. Bayshore Road
Palo Alto, California 94303
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by ClickAction Inc. (the "Company") of a Registration Statement
on Form S-8 (the "Registration Statement") with the Securities and Exchange
Commission covering the offering of up to 1,000,000 shares of the Company's
Common Stock, $.001 par value, (the "Shares") pursuant to the Company's 1999
Employee Stock Purchase Plan (the "Plan").
In connection with this opinion, we have examined and relied on the Registration
Statement and related prospectus, the Company's Certificate of Incorporation, as
amended and Bylaws, as amended, and the originals or copies certified to our
satisfaction of such records, documents, certificates, memoranda and other
instruments as in our judgment are necessary or appropriate to enable us to
render the opinion expressed below. We have assumed the genuineness and
authenticity of all documents submitted to us as originals, the conformity to
originals of all documents submitted to us as copies, and the due execution and
delivery of all documents, where due execution and delivery are a prerequisite
to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Plan, and the
Registration Statement and related prospectus, will be validly issued, fully
paid, and nonassessable (except as to shares issued pursuant to certain deferred
payment arrangements, which will be fully paid and nonassessable when such
deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
COOLEY GODWARD LLP
By: /s/ James Kitch
- ----------------------
James Kitch
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
ClickAction Inc.:
We consent to the incorporation herein by reference of our report dated February
11, 2000, relating to the consolidated balance sheets of ClickAction Inc. as of
December 31, 1999 and 1998, and the related consolidated statements of
operations, stockholders' equity and cash flows for each of the years in the
three-year period ended December 31, 1999, which report appears in the December
31, 1999 annual report on Form 10-KSB of ClickAction Inc.
KPMG LLP
Mountain View, California
May 23, 2000
