UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________________
FORM 10-KSB/A
Amendment No. 1
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
Commission File Number: 0-26008
CLICKACTION INC.
2197 E. Bayshore Road, Palo Alto, California 94303
(650) 473-3600
Incorporated in I.R.S. Employer Identification No.
Delaware 77-0195362
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act: Common Stock
Indicate by check mark whether the registrant: (1) has filed all reports to be
filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or for such shorter period that the registrant was required
to file such reports), and (2) has been subject to such filing requirements
for the past 90 days. Yes [x] No ____
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulations S-K is not contained herein, and will not be contained, to the
best of the registrant's knowledge, in definitive proxy of information
statements incorporated by reference in Part III of this Form 10-KSB or any
amendments to the Form 10-KSB. [ X ]
Based on the closing price of $42.25 on February 29, 2000, the aggregate market
value of the common stock held by non-affiliates of the registrant as of
February 29, 2000 was $ 188,999,249.
The number of shares outstanding of the registrant's common stock as of
February 29, 2000 was 5,417,575.
This filing amends and supplements the Annual Report on Form 10-KSB filed with
the Securities and Exchange Commission (the "SEC") on March 21, 2000 by
ClickAction Inc. (the "Company") (the "Form 10-KSB"). The purpose of this
filing is to add an exhibit required to be included in Item 14.
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Palo Alto,
California, on the 31st day of March 2000.
CLICKACTION INC.
BY : /s/ Gregory W. Slayton
-----------------------------
Gregory W. Slayton
President and Chief Executive Officer
<PAGE>
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been signed below by the following persons on behalf of the registrant and
in the capacities indicated on the 31st day of March 2000.
Signature Title
- ------------------------------ ----------------------------------------------
/s/ David P. Mans Chairman of the Board of Directors
-----------------------------
David P. Mans
/s/ Gregory W. Slayton President, Chief Executive Officer
---------------------------- and Director (Principal Executive Officer)
Gregory W. Slayton
/s/ Sharon S. Chiu Vice President of Operations and Chief
- ---------------------------- Financial Officer (Principal Financial and
Sharon S. Chiu Accounting Officer)
/s/ Howard Love Director
----------------------------
Howard Love
/s/ Donald F. Wood Director
----------------------------
Donald F. Wood
/s/ Edwin R. Niehaus, III Director
----------------------------
Edwin R. Niehaus, III
/s/ John J. Katsaros Director
----------------------------
John J. Katsaros
/s/ Emerick M. Woods Director
----------------------------
Emerick M. Woods
<PAGE>
PART III
Item 13. Exhibits, List and Reports on Form 8-K
(a) Exhibits
Exhibit Incorporated by Reference
Number Exhibit Description Form Date Number
- -------- ------------------------------ ------ --------- ---------
2.1 Agreement and Plan of Merger 8-K 8/19/99 2.1
and Reorganization, dated as of
July 2, 1999, among MySoftware
Company, MyMarket Acquisition
Corp., MarketHome, and the
shareholders of MarketHome
3.1 Certificate of Incorporation S-1 6/20/95 3.3
3.2 Bylaws S-1 6/20/95 3.4
3.3 Certificate of Ownership and 8-K 9/21/99 3.1
Merger, merging ClickAction Inc.,
a wholly owned subsidiary of
MySoftware Company, with and into
MySoftware Company, as filed on
September 14, 1999
4.1 Specimen Common Stock Certificate 8-K 9/21/99 4.1
10.1 Form of Indemnity Agreement for S-1 6/20/99 10.1
officers and directors
10.2 Form of Indemnity Agreement for
officers and directors S-1 6/20/99 10.2
10.3 1995 Equity Incentive Plan S-1 6/20/95 10.3
(the "1995 Plan")
10.4 Form of Incentive Stock Option S-1 6/20/95 10.4
under the 1995 Plan
10.5 Form of Nonstatutory Stock S-1 6/20/95 10.5
Option under the 1995 Plan
10.6 1995 Non-Employee Directors' S-1 6/20/95 10.6
Stock Option Plan
(the "Directors' Plan")
10.7 Form of Stock Option under S-1 6/20/95 10.7
the Directors' Plan
10.8 Lease Agreement by and between S-1 6/20/95 10.8
ClickAction and 2197 E. Bayshore
Road Partnership dated February
25, 1993, as amended
<PAGE>
EXHIBITS INDEX (Continued)
Exhibit Incorporated by Reference
Number Exhibit Description Form Date Number
- ------- --------------------- ------ ------ --------
10.9 Software Development Agreement S-1 6/20/95 10.9
by and between ClickAction and
Micro-Burst, Inc. dated October 11,
1993("the October 11, 1993 Agreement")
10.10 Software Development Agreement by S-1 6/20/95 10.10
and between ClickAction and Micro-
Crafts, Inc. dated September 13,
1993("the September 13, 1991 Agreement")
10.11 Amendment to the September 13, S-1 6/20/95 10.11
1991 Agreement between ClickAction
and MicroCrafts, Inc., dated
October 10, 1994
10.12 Software Development Agreement S-1 6/20/95 10.12
by and between ClickAction and
Micro-Crafts, Inc. dated October
18, 1992 ("the October 18, 1992 Agreement")
10.13 Amendment to the October 18, 1992 S-1 6/20/95 10.13
Agreement between ClickAction
and MicroCrafts, Inc., dated
October 10, 1994
10.14 Software Development Agreement by S-1 6/20/95 10.14
and between ClickAction and Micro-
Crafts, Inc. dated December 10, 1993
10.15 Software Purchase Agreement and 10-K 12/31/95 10.15
Assignment of Copyright dated
January 15, 1996 by and between
ClickAction and Mediatech, Inc.
10.16 Amendment to Lease Agreement dated 10-K 12/31/95 10.16
June 30, 1995
10.17 Lease Agreement by and between 10-KSB 12/31/96 10.17
ClickAction and Birmingham
Properties, Inc. dated
October 8, 1996
10.18 Third Amendment to Lease Agreement 10-KSB 12/31/96 10.18
by and between ClickAction and
Holvick Family Trust, dated
January 31, 1997
10.19 Rights Agreement 8-K 6/15/98
<PAGE>
EXHIBITS INDEX (Continued)
Exhibit Incorporated by Reference
Number Exhibit Description Form Date Number
- ------- --------------------- ------ ------ --------
10.20 1998 Non-Officer Stock Option Plan S-8 12/14/98
10.21 Data Agreement with the Polk Company 10-KSB 12/31/98 10.21
10.22 Data Agreement with Experian 10-KSB 12/31/98 10.22
Information Solutions, Inc.
*10.23 Employment Agreement with Gregory N/A N/A
Slayton, CEO & President dated
November 18, 1999
23.1 Consent of KPMG LLP 10-KSB 3/21/00 23.1
27.1 Financial Data Schedule 10-KSB 3/21/00 27.1
* Filed herwith
<PAGE>
EXHIBIT 10.23
Employment Agreement
EMPLOYMENT OFFER LETTER FOR GREGORY SLAYTON
November 18, 1999
Mr. Gregory W. Slayton
2197 E. Bayshore Road
Palo Alto, CA 94303
Dear Gregory:
On behalf of the Board of Directors of ClickAction Inc., I am pleased to provide
you with this offer of continued employment as the President and CEO of the
Company. Some of the terms of the employment are set forth -n separate documents
which are referred to below.
Employment at Will
Your employment may be terminated at any time by you or by the Company. This
at-will employment relationship cannot be changed except in writing signed by a
duly authorized officer of ClickAction Inc.
Salary
Your salary will be $300,000 per year.
Bonus
You will be eligible to earn a bonus based on specific, pre-determined
performance goals under the Company's Senior Management Bonus Plan. The target
bonus will be $100,000.
Stock Options
You will be granted options to purchase 200,000 shares of the Company's stock
with 100,000 of the shares to be issued under the Company 1995 Equity Incentive
Plan and 100,000 of the shares to be issued under the Company's 1998 on-Officer
Stock Option Plan after that plan is amended to permit the grant of stock
options to officers.
Time Vesting
The options will have an exercise price equal to the fair market value of the
Company's stock on November 18, 1999, with four year vesting of 1/48th each
month subject to acceleration in the event of a change in control as set forth
below.
Incentive Stock Options
To the maximum extent permitted by current law. The options under the 1995
Equity Incentive Plan will be characterized as incentive stock options.
Accelerated Vesting on Stock Options Following a Change in Control
In the event of a Change of Control (as defined below), then the vesting and
exercisability of the above stock options shall acceleration as follows;
provided, however, that if such potential acceleration of the vesting and
exercisalility of the options would cause a contemplated Change of Control
transaction that would otherwise be eligible to be accounted for as a
"pooling-of-interests" transaction to become ineligible for such accounting
<PAGE>
treatment under generally accepted accounting principles as determined by the
Company's independent public accountants prior to the Change of Control, such
acceleration shall not occur.
<PAGE>
In the event of both (A) a Change of Control and (B) the termination due to an
involuntary termination without Cause (as defined below) or due to a
Constructive Termination (as defined below) of your continuous status as an
employee, director or consultant with the Company or with an affiliate within
twelve (12) months: after such Change of Control, then the vesting and
execisability of the options shall accelerate= in full so that one hundred
percent (100%) of the options shall be vested and exercisable a on.
If on the twelve (12) month anniversary following E Change of Control, you
remain in service with the Company or with an affiliate, then the options which
are unvested on such anniversary shall become vested and exercisable on such
anniversary according to the following schedule.
Percentage of Unvested Option
Transaction Price of Common Stock Shares Vested (after acceleration)
- --------------------------------- ----------------------------------
$12.00 65%
$14.00 75%
$16.00 80%
$18.00 85%
$20.00 90%
$22.00 100%
In this schedule, "Transaction Price of Common Stock" refers to the price per
share of common stock at which a Change of Control occurs. "Percentage of
Unvested Option Shares Vested" refers to the number of option shares unvested on
the date of the twelve (12) month anniversary of the Change of Control that will
become vested and exercisable on such anniversary. For example, if a Change of
Control occurs at a Translation Price of $16.00, then eighty percent (80%) of
any option shares which are unvested on the date of the twelve (12) month
anniversary of the Change of Control will be vested and exercisable on such
anniversary.
For purposes of the options, "Change of Control" is defined as: (A) a sale of
fifty percent (50%) or more of the assets of the Company; (B) a merger or
consolidation in which the Company is not the surviving corporation and the
stockholders of the Company immediately prior to the completion of such
transaction hold, director or indirectly, less than fifty percent (50%) of the
beneficial ownership, (within the meaning of Rule 13d-3 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") or comparable)
successor rules) of the securities of the surviving corporation (excluding any
stockholders who posseed a beneficial interest in the surviving corporation is
the the sahres of Common Stocks outstanding immediately preceding the merger are
converted by viture of the merger into other property, whether in the form of
securities, cash or otherwise , and the stockholders of the Company immediately
prior to the completion of such transaction hold, directly or indirectly, less
then fifty percent (50%) of the beneficial ownership (within the meaning of Rule
13d-3 promulugated under the Exchange Act, or comparable successor rules) of the
surviving entity or if you more the one entity survives the transaction, the
controlling entity; or (D) an acquistion by any comparable successor provisions
(excluding any employee benefit plan, or related trust, sponsored or maintained
by the Company or an affiliate) of the beneficial ownership (within the
meaning of Rule 13-3 promulgated under the Exchange Act, or comparable successor
<PAGE>
rules) of securities of the Company representing at least fifty percent (50%)
of the combined voting power entitled to vote in the election of directors.
Also for purposes of the options, "Cause" is defined as (A) conviction of, a
guilty plea with respect to, or a plea of nolo contendere to a charge that you
have committed a felony under the laws of the United States or of any state or a
crime involving moral turpitude, including, but not limited to, fraud, theft,
embezzlement or any crime that results in or is intended to result in personal
enrichment at the expense of the Company or any affiliate; (B) a material
breach by you of any agreement entered into between you and Company or any
affiliate that impairs the Company's or affiliate's therein; (C) your willfull
misconduct, singificant failure of you to preorme your duties, or gorss neglect
by you of your duties; or (D) engagement in any activity that constitutes a
material conflict of interest with the Commpany or any affiliate.
For purposes of the options, "Constructive Termination" means that you
voluntarily terminate your Continuous Status as an employee, director or
consultant after any of the following are undertaken without your express
written consent: (A) the assignment ot you of any duties or responsibilities
which result in any material diminution or or material adverse change of your
position, status or circumstances of service as in effect immediately prior to
a change in your titles or offces as in effect immediately prior to a Change of
Control, or any removal of you from or any failure to reelect you to any of such
positions, except in connection with the termination of your continuous status
as an employee, director or consultant on account of death, disability,
retirement, of Cause, for Cause or any vlountary termination by you othr than
Constructive Termination; (B) a reduction by the Company in you annual base
compensation; (C) any failure by the company to continue in effect any benefit
plan or arrangement, including incentive plans or plans to receive securities of
the tiem of Change of Control (hereinafter referred to as "Benefit Plans"), or
the taking of any action by the Company which would adversely affect your
participation in or reduce your benenfits under any Benefit Plans or deprive you
of any fringe benefit enjoyed by you at the of a Change of Control if the
Company offersa range of benefit plans and programs which , taken as a whole,
are comparable to the Benefit Plans; (D) a relocation of you or the Company's
office's to a location more the thirty-five (35) miles for the location at which
you preform your duties prior to a Change of Control except for required travel
by you on the Company's or any affiliate's business to an extent substantially
consisent with your business travel obligations at the time of a Change of
Control; (E) any material breach by the Company of your options or of any
provision of any employment or other agreement between you and the Company to
obtain the assumption of you options by any successor or assign of the Company.
Benefits and 401(k) Plan
All standard benefits including the Company's 401(k) Plan will continue to
apply. The benefits are described in our standard benefit plan descriptions.
Company Policies and Proprietary Information
As an employee of ClickAction Inc., you will be expected to abide by all of the
Company's policies and procedures. As a condition of your employment, you agree
to sign and abide by the terms pf the ClickAction Inc. Employee Proprietary
Information and Inventions Agreement.
This offer is subject to your signing the enclosed copy of this letter and the
Company's Employee Proprietary Information and Inventions Agreement.
<PAGE>
We hope you find this offer acceptable and look forward to your continued
employment with the Company.- The non-standard provisions to the stock option
agreement and the Severance Agreement are subject to a definitive legal
agreement. This offer subject any prior offers or agreements in their entirety.
Sincerely,
/s/David P. Mans
- -------------------
David P. Mans
Chairman of the Board of Directors
Agreed and Accepted By:
/s/Gregory W. Slayton
- ---------------------- Date: 11/19/99
Gregory W. Slayton
<PAGE>
