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As filed with the Securities and Exchange Commission on December 27, 1996
Registration No. 333-_____
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U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
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HNC SOFTWARE INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 33-0248788
(State of Incorporation) (I.R.S. Employer
Identification No.)
5930 CORNERSTONE COURT WEST
SAN DIEGO, CALIFORNIA 92121-3728
(Address of Principal Executive Offices)
1995 EQUITY INCENTIVE PLAN
OPTIONS GRANTED BY RETEK DISTRIBUTION CORPORATION ASSUMED BY THE REGISTRANT
(Full Title of the Plan)
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RAYMOND V. THOMAS
CHIEF FINANCIAL OFFICER
HNC SOFTWARE INC.
5930 CORNERSTONE COURT WEST
SAN DIEGO, CALIFORNIA 92121-3728
(619) 546-8877
(Name, Address and Telephone Number of Agent for Service)
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Copies to:
KENNETH A. LINHARES, ESQ.
TYLER R. COZZENS, ESQ.
G. CHIN CHAO, ESQ.
FENWICK & WEST LLP
TWO PALO ALTO SQUARE
PALO ALTO, CALIFORNIA 94306
CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED OFFERING PRICE PER SHARE AGGREGATE OFFERING PRICE REGISTRATION FEE
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Common Stock, $0.001 par value 1,750,000 (1) $27.875(2) $48,781,250.00(2) $14,782.20(3)
Common Stock, $0.001 par value 155,864 (4) $8.53(5) $1,329,846.70 $402.98(3)
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(1) Additional shares available for grant and not yet subject to
outstanding stock options as of December 27, 1996 under the 1995 Equity
Incentive Plan.
(2) Estimated as of December 23, 1996 pursuant to Rule 457(c) solely for
the purpose of calculating the registration fee.
(3) Fee calculated pursuant to Section 6(b) of the Securities Act of 1933,
as amended. This amount equals 1/33 of 1% of the proposed maximum
aggregate offering price.
(4) Shares subject to assumed Retek Distribution Corporation options as of
December 27, 1996.
(5) Weighted average per share exercise price for such outstanding options
pursuant to Rule 457(h)(1).
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HNC SOFTWARE INC.
REGISTRATION STATEMENT ON FORM S-8
PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The Registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), or the latest prospectus
filed by the Registrant pursuant to Rule 424(b) under the
Securities Act of 1933, as amended (the "Securities Act"),
that contains audited financial statements for the
Registrant's latest fiscal year for which such statements have
been filed.
(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 report or prospectus referred to in (a) above.
(c) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement filed with the
Commission under Section 12 of the Exchange Act, including any
amendment or report filed for the purpose of updating such
description.
All 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 registered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed incorporated by reference herein and to be a part hereof from the date
of the filing of such documents.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the issuance of the shares of Common Stock offered
hereby will be passed upon for the Company by Fenwick & West LLP, Palo Alto,
California. Members of the firm of Fenwick & West LLP own an aggregate of 3,314
shares of Common Stock of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by Section 145 of the Delaware General Corporation Law,
the Registrant's Certificate of Incorporation includes a provision that
eliminates the personal liability of its directors to the Registrant or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability: (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders; (ii) for acts or omissions not in good
faith or that involve intentional misconduct or a knowing violation of law;
(iii) under Section 174 of the Delaware General Corporation Law; or (iv) for any
transaction from which the director derived an improper personal benefit.
In addition, as permitted by Section 145 of the Delaware General
Corporation Law, the Bylaws of the Registrant provide that: (i) the Registrant
is required to indemnify its directors and officers as well as directors and
officers of any other corporation, partnership or other enterprise when they are
serving in such capacities at the request of the Registrant to the fullest
extent permitted by the Delaware General Corporation Law; (ii) the Registrant
may, in its discretion, indemnify other officers, employees and
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agents as set forth in the Delaware General Corporation Law; (iii) upon receipt
of an undertaking to repay such advances if indemnification is determined to be
unavailable, the Registrant is required to advance expenses, as incurred, to its
directors and officers to the fullest extent permitted by the Delaware General
Corporation Law in connection with a proceeding (except that it is not required
to advance expenses to a person against whom the Registrant brings a claim for
breach of the duty of loyalty, failure to act in good faith, intentional
misconduct, knowing violation of law or deriving an improper personal benefit);
(iv) the rights conferred in the Bylaws are not exclusive and the Registrant is
authorized to enter into indemnification agreements with its directors, officers
and employees and agents; (v) the Registrant may not retroactively amend the
Bylaw provisions in a way that adversely affects the indemnification provided
thereunder.
The Registrant's policy is to enter into indemnity agreements
with each of its directors and officers. The indemnity agreements provide that
directors and officers will be indemnified and held harmless to the fullest
possible extent permitted by law, including against all expenses (including
attorneys' fees), judgments, fines and settlement amounts paid or reasonably
incurred by them in any action, suit or proceeding, including any derivative
action by or in the right of the Registrant, on account of their services as
directors or officers of the Registrant or as directors or officers of any other
corporation, partnership or other enterprise when they are serving in such
capacities at the request of the Registrant. The Registrant is not obligated
pursuant to the agreements to indemnify or advance expenses to an indemnified
party with respect to proceedings or claims (i) initiated by the indemnified
party and not by way of defense, except with respect to a proceeding authorized
by the Board of Directors and successful proceedings brought to enforce a right
to indemnification under the indemnity agreements; (ii) for any amounts paid in
settlement of a proceeding unless the Registrant consents to such settlement;
(iii) on account of any suit in which judgment is rendered against the
indemnified party for an accounting of profits made from the purchase or sale by
the indemnified party of securities of the Registrant pursuant to the provisions
of 16(b) of the Securities Exchange Act of 1934 and related laws; (iv) on
account of conduct by an indemnified party that is finally adjudged to have been
in bad faith or conduct that the indemnified party did not reasonably believe to
be in, or not opposed to, the best interests of the Registrant; (v) on account
of any criminal action or proceeding arising out of conduct that the indemnified
party had reasonable cause to believe was unlawful; or (vi) if a final decision
by a court having jurisdiction in the matter shall determine that such
indemnification is not lawful.
The indemnity agreement requires a director or officer to
reimburse the Registrant for expenses advanced only to the extent it is
ultimately determined that the director or officer is not entitled, under
Delaware law, the Bylaws, his or her indemnity agreement or otherwise, to be
indemnified for such expenses. The indemnity agreement provides that it is not
exclusive of any rights a director or officer may have under the Certificate of
Incorporation, the Bylaws, other agreements, any majority-in-interest vote of
the stockholders or vote of disinterested directors, Delaware law, or otherwise.
The indemnification provision in the Bylaws, and the indemnity
agreements entered into between the Registrant and its directors and officers,
may be sufficiently broad to permit indemnification of the Registrant's
directors and officers for liabilities arising under the Securities Act.
The indemnity agreements require the Registrant to maintain
director and official liability insurance to the extent readily available. The
Registrant currently carries a director and officer insurance policy.
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ITEM 8. EXHIBITS.
4.01 HNC Software Inc. 1995 Equity Incentive Plan, as amended
through December 6, 1996.
4.02 Form of 1995 Equity Incentive Plan Stock Option Agreement and
Stock Option Exercise Agreement.(1)
4.03 Form of Retek Distribution Corporation Nonqualified Stock
Option Agreement.(2)
4.04 Registrant's Restated Certificate of Incorporation filed with
the Secretary of State of Delaware on June 13, 1996.(3)
4.05 Registrant's Bylaws, as amended.(3)
4.06 Form of specimen certificate for Registrant's Common Stock.(4)
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of Price Waterhouse LLP, Independent Accountants.
24.01 Power of Attorney (see page 6 ).
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(1) Incorporated by reference from Exhibit 10.02 to the Company's
Registration Statement on Form S-1 (File No. 33-91932) filed on May
5, 1995, and as subsequently amended.
(2) Retek Distribution Corporation is a British Virgin Islands
corporation that is an international business company formed under
the British Virgin Islands' International Business Companies Act,
and was acquired by the Registrant on November 29, 1996.
(3) Filed as Exhibit 3(i).04 (Restated Certificate of Incorporation) and
Exhibit 3(ii).05 (Bylaws) with the Company's Report on Form 10-Q for
the quarter ended June 30, 1996 as originally filed on August 13,
1996.
(4) Incorporated by reference from Exhibit 4.01 to the Company's
Registration Statement on Form S-1 (File No. 33-91932) filed on May
5, 1995, and as subsequently amended.
ITEM 9. UNDERTAKINGS.
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:
(i) To include any prospectus required by Section 10(a)(3) of
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 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
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low and high end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a twenty
percent (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 (1)(i) and (1)(ii) above do not apply if the
Registration Statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) 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.
(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.
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
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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.
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 provisions discussed in Item 6 hereof, 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 hereby, 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.
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints Robert L. North and Raymond V. Thomas,
and each of them, his true and lawful attorneys-in-fact and agents with full
power of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement on Form S-8, and to file the same with all
exhibits thereto and all 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 and about the premises, as fully to
all intents and purposes as he or it might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or his or their substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
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 San Diego, State of California, on the 27th day
of December, 1996.
HNC SOFTWARE INC.
By: /s/ Raymond V. Thomas
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Raymond V. Thomas
Vice President, Finance and
Administration, Chief Financial
Officer and Secretary
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE TITLE DATE
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PRINCIPAL EXECUTIVE OFFICER:
/s/ Robert L. North President, Chief Executive Officer December 27, 1996
- ------------------------------------ and a Director
Robert L. North
PRINCIPAL FINANCIAL AND ACCOUNTING OFFICER:
/s/ Raymond V. Thomas Vice President, Finance and Administration December 27, 1996
- ------------------------------------ Chief Financial Officer and Secretary
Raymond V. Thomas
ADDITIONAL DIRECTORS:
/s/ Edward K. Chandler Director December 27, 1996
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Edward K. Chandler
/s/ Oliver D. Curme Director December 27, 1996
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Oliver D. Curme
/s/ Roger L. Evans Director December 27, 1996
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Roger L. Evans
/s/ Thomas F. Farb Director December 27, 1996
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Thomas F. Farb
/s/ Charles H. Gaylord Director December 27, 1996
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Charles H. Gaylord, Jr.
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EXHIBIT INDEX
Exhibit No. Description
4.01 HNC Software Inc. 1995 Equity Incentive Plan, as amended through
December 6, 1996.
4.02 Form of 1995 Equity Incentive Plan Stock Option Agreement and Stock
Option Exercise Agreement.(1)
4.03 Form of Retek Distribution Corporation Nonqualified Stock Option
Agreement.(2)
4.04 Registrant's Restated Certificate of Incorporation filed with the
Secretary of State of Delaware on June 13, 1996.(3)
4.05 Registrant's Bylaws, as amended.(3)
4.06 Form of specimen certificate for Registrant's Common Stock.(4)
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of Price Waterhouse LLP, Independent Accountants.
24.01 Power of Attorney (see page 6 ).
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(1) Incorporated by reference from Exhibit 10.02 to the Company's
Registration Statement on Form S-1 (File No. 33-91932) filed on May
5, 1995, and as subsequently amended.
(2) Retek Distribution Corporation is a British Virgin Islands
corporation that is an international business company formed under
the British Virgin Islands' International Business Companies Act,
and was acquired by the Registrant on November 29, 1996.
(3) Filed as Exhibit 3(i).04 (Restated Certificate of Incorporation) and
Exhibit 3(ii).05 (Bylaws) with the Company's Report on Form 10-Q for
the quarter ended June 30, 1996 as originally filed on August 13,
1996.
(4) Incorporated by reference from Exhibit 4.01 to the Company's
Registration Statement on Form S-1 (File No. 33-91932) filed on May
5, 1995, and as subsequently amended.