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As filed with the Securities and Exchange Commission on February 5, 1999
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 or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
5930 CORNERSTONE COURT WEST
SAN DIEGO, CALIFORNIA 92121-3728
(Address of Principal Executive Offices)
(1) 1995 EQUITY INCENTIVE PLAN
(2) STOCK OPTIONS GRANTED BY APTEX SOFTWARE INC. UNDER ITS
1996 EQUITY INCENTIVE PLAN AND 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.
WILLIAM L. HUGHES, 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 OFFERING PROPOSED MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PRICE PER SHARE OFFERING PRICE REGISTRATION FEE
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Common Stock, $0.001 par value 700,000(1) $26.625(2) $18,637,500(2) $5,182(3)
Common Stock, $0.001 par value 400,532(4) $26.970(5) $10,802,348 $3,004(3)
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(1) Additional shares available for grant under Registrant's 1995 Equity
Incentive Plan as of November 20, 1998 and not yet subject to awarded
outstanding stock options, restricted stock purchase agreements or stock
bonus agreements.
(2) Estimated as of February 4, 1999 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.
(4) Shares subject to assumed Aptex Software Inc. 1996 Equity Incentive Plan as
of January 22, 1999.
(5) Weighted average per share exercise price for such outstanding options
calculated 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 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 on Form 8-A filed with the
Commission under Section 12 of the Exchange Act on May 26, 1995,
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 offered hereby 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 hereof from the
date of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
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 Registrant by Fenwick & West LLP, of Palo
Alto, California. Members of the firm of Fenwick & West LLP own an aggregate of
approximately 4,000 shares of Common Stock of the Registrant.
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
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as directors and officers of any other corporation, partnership, joint venture,
trust, employee benefit plan 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 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 the Registrant is not required to
advance expenses to a person against whom it 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; and (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 against all expenses
(including attorneys' fees), judgments, fines, ERISA excise taxes or penalties
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 a director or officer of the
Registrant or as directors or officers of any other corporation, partnership or
enterprise when they are serving in such capacities at the request of the
Registrant; except that no indemnity is provided in a derivative action in which
such director or officer is finally adjudged by a court to be liable to the
Company due to willful misconduct in the performance of his or her duty to the
Company, unless the court determines that such director or officer is entitled
to indemnification. The Registrant will not be obligated pursuant to the
agreements to indemnify or advance expenses to an indemnified party with respect
to proceedings or claims (i) initiated voluntarily 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 and/or advancement of expenses 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 Section 16(b) of the Exchange Act and related laws
and regulations; (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 if and to the extent it is ultimately
determined that the director or executive officer is not entitled, under
Delaware law, the Registrant's Certificate of Incorporation, the Registrant's
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 executive 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.
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The indemnity agreements require the Registrant to maintain director and
officer liability insurance to the extent readily available. The Registrant
currently carries a director and officer insurance policy.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.01 HNC Software Inc. 1995 Equity Incentive Plan, as amended
through November 20, 1998.(1)
4.02 Form of 1995 Equity Incentive Plan Stock Option Agreement
and Stock Option Exercise Agreement.(1)
4.03 Aptex Software Inc. 1996 Equity Incentive Plan.(2)
4.04 Form of Aptex Software Inc. 1996 Equity Incentive Plan Stock
Option Agreement and Stock Option Exercise Agreement.
4.05 Registrant's Restated Certificate of Incorporation filed
with the Secretary of State of Delaware on June 13, 1996.(3)
4.06 Registrant's Bylaws, as amended.(4)
4.07 Form of specimen certificate for Registrant's Common
Stock.(5)
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of PricewaterhouseCoopers LLP, Independent
Accountants.
24.01 Power of Attorney (see pages 7 and 8).
99.01 Office Building Lease dated as of October 2, 1998, between
the Registrant and The Irvine Company.
99.02 Office Building Lease Amendment No. 1 dated as of November
30, 1998, between Retek Information Systems, Inc. and
Midwest Real Estate Holdings LLC.
99.03 Office Building Lease Amendment No. 2 dated as of December
18, 1998, between Retek Information Systems, Inc. and
Midwest Real Estate Holdings LLC.
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(1) Incorporated by reference from Exhibit 10.02 to the Registrant's
Registration Statement Amendment No. 1 on Form S-4 (File No.
333-64527) filed on December 21, 1998.
(2) Aptex Software Inc. is a California corporation and a subsidiary
of the Registrant that was merged into the Registrant on January
22, 1999 pursuant to a Plan of Merger adopted by the Board of
Directors of the Registrant on December 21, 1998 under which
Registrant agreed to assume all outstanding stock options granted
under Aptex Software Inc.'s 1996 Equity Incentive Plan.
(3) Filed as Exhibit 3(i).04 with the Registrant's Report on Form
10-Q for the quarter ended June 30, 1996, as originally filed on
August 13, 1996.
(4) Filed as Exhibit 3(ii).05 with the Registrant's Report on Form
10-Q for the quarter ended June 30, 1996, as originally filed on
August 13, 1996.
(5) Incorporated by reference from Exhibit 4.01 to the Registrant's
Registration Statement on Form S-1 (File No. 33-91932) filed on
May 5, 1995, and as subsequently amended.
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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 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 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
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 described 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,
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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 2nd day
of February, 1999.
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 February 2, 1999
- ----------------------------- and a Director
Robert L. North
PRINCIPAL FINANCIAL OFFICER:
/s/ Raymond V. Thomas Vice President, Finance and Administration February 2, 1999
- ----------------------------- Chief Financial Officer and Secretary
Raymond V. Thomas
PRINCIPAL ACCOUNTING OFFICER:
/s/ Kenneth J. Saunders Vice President, Corporate Controller February 2, 1999
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Kenneth J. Saunders
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ADDITIONAL DIRECTORS:
/s/ Edward K. Chandler Director February 2, 1999
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Edward K. Chandler
/s/ Oliver D. Curme Director February 2, 1999
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Oliver D. Curme
/s/ Thomas F. Farb Director February 2, 1999
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Thomas F. Farb
Director February 2, 1999
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Charles H. Gaylord, Jr.
/s/ Alex W. Hart Director February 2, 1999
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Alex W. Hart
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EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT TITLE
4.01 HNC Software Inc. 1995 Equity Incentive Plan, as amended through
November 20, 1998.(1)
4.02 Form of 1995 Equity Incentive Plan Stock Option Agreement and Stock
Option Exercise Agreement.(1)
4.03 Aptex Software Inc. 1996 Equity Incentive Plan.(2)
4.04 Form of Aptex Software Inc.1996 Equity Incentive Plan Stock Option
Agreement and Stock Option Exercise Agreement.
4.05 Registrant's Restated Certificate of Incorporation filed with the
Secretary of State of Delaware on June 13, 1996.(3)
4.06 Registrant's Bylaws, as amended.(4)
4.07 Form of specimen certificate for Registrant's Common Stock.(5)
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.03 Power of Attorney (see pages 7 and 8).
99.01 Office Building Lease dated as of October 2, 1998, between
Registrant and The Irvine Company.
99.02 Office Building Lease Amendment No. 1 dated as of November 30, 1998,
between Retek Information Systems, Inc, and Midwest Real Estate
Holdings LLC.
99.03 Office Building Lease Amendment No. 2 dated as of December 18, 1998,
between Retek Information Systems, Inc, and Midwest Real Estate
Holdings LLC.
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(1) Incorporated by reference from Exhibit 10.02 to the Company's
Registration Statement Amendment No. 1 on Form S-4 (File No.
333-64527) filed on December 21, 1998.
(2) Aptex Software Inc. is a California corporation and a subsidiary
of Registrant that was merged into the Registrant on January 22,
1999 pursuant to a Plan of Merger adopted by the Board of
Directors of the Registrant on December 21, 1998 under which
Registrant agreed to assume all outstanding stock options granted
under Aptex Software Inc.'s 1996 Equity Incentive Plan.
(3) Filed as Exhibit 3(i).04 with the Registrant's Report on Form
10-Q for the quarter ended June 30, 1996, as originally filed on
August 13, 1996.
(4) Filed as Exhibit 3(ii).05 (Bylaws) with the Registrant's Report
on Form 10-Q for the quarter ended June 30, 1996, as originally
filed on August 13, 1996.
(5) Incorporated by reference from Exhibit 4.01 to the Registrant's
Registration Statement on Form S-1 (File No. 33-91932) filed on
May 5, 1995, and as subsequently amended.
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