-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NIm9Ad4jJEC7p+j4ABirx01N2/j3MYaL8tflqLbJ0dmlf4I0irXTonTESeq4ZlCH vXkijPmEVdcdGFWphjXd5w== 0000891618-96-002395.txt : 19961028 0000891618-96-002395.hdr.sgml : 19961028 ACCESSION NUMBER: 0000891618-96-002395 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19961025 EFFECTIVENESS DATE: 19961025 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: INFINITY FINANCIAL TECHNOLOGY INC CENTRAL INDEX KEY: 0001017657 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 770227321 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-14805 FILM NUMBER: 96647634 BUSINESS ADDRESS: STREET 1: 640 CLYDE COURT CITY: MOUNTAIN VIEW STATE: CA ZIP: 94043 BUSINESS PHONE: 4159406100 MAIL ADDRESS: STREET 1: 640 CLYDE COURT CITY: MOUNTAIN VIEW STATE: CA ZIP: 94043 S-8 1 INFINITY FINANCIAL TECHNOLOGY, INC., FORM S-8 1 As filed with the Securities and Exchange Commission on October __, 1996 Registration No. 333- =============================================================================== SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------------------------------------------- INFINITY FINANCIAL TECHNOLOGY, INC. (Exact name of Registrant as Specified in Its Charter) ---------------------------------------------- DELAWARE 77-0227321 (State or Other Jurisdiction (I.R.S. Employer of Incorporation or Organization) Identification No.) 640 CLYDE COURT MOUNTAIN VIEW, CA 94043 (Address of Principal Executive Offices) 1996 STOCK INCENTIVE PLAN 1996 EMPLOYEE STOCK PURCHASE PLAN (Full Title of the Plans) ---------------------------------------------- TERRY H. CARLITZ CHIEF FINANCIAL OFFICER AND VICE PRESIDENT, FINANCE INFINITY FINANCIAL TECHNOLOGY, INC. 640 CLYDE COURT MOUNTAIN VIEW, CA 94043 (Name and Address of Agent for Service) (415) 940-6100 (Telephone Number, Including Area Code, of Agent For Service) Copy to: MICHAEL C. PHILLIPS, ESQ. CORI M. ALLEN, ESQ. MORRISON & FOERSTER LLP 755 PAGE MILL ROAD PALO ALTO, CA 94304 (415) 813-5600 -------------------------------------------------- CALCULATION OF REGISTRATION FEE - -------------------------------------------------------------------------------
Proposed Proposed Amount Maximum Maximum Amount of Title of Securities to be Offering Price Aggregate Offering Registration to be Registered Registered(1) Per Share(2) Price(2) Fee - ---------------- ------------- ------------ -------- --- Common Stock, $.001 par value per share 1,100,000 $17 $18,700,000 $6,449
- ------------------------------------------------------------------------------- (1) Includes 800,000 shares to be registered under the 1996 Stock Incentive Plan and 300,000 shares to be registered under the 1996 Employee Stock Purchase Plan. (2) Estimated solely for the purpose of calculating the registration fee. =============================================================================== Page 1 of 11 pages. The Index to Exhibits appears on page II-8. 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents filed by Infinity Financial Technology, Inc. (the "Registrant") with the Securities and Exchange Commission (the "Commission") are incorporated by reference herein: (a) The Registrant's Registration Statement on Form S-1 (the "Registration Statement") as declared effective on October 24, 1996 (No. 333-8647), which includes audited financial statements for the Registrant's latest fiscal year, and the Propectus included therein. (b) All other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") since the end of the fiscal year covered by the audited financial statements described in (a) above. (c) The description of the Registrant's Common Stock which is contained in its Registration Statement on Form 8-A dated October 24, 1996 filed under the Exchange Act, including any amendment or report filed for the purpose of updating such description. All documents filed by the Registrant with the Commission pursuant to Section 13(a), 13(c), 14 or 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 into this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained in a document 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. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. II-1 Page 2 of 11 Pages 3 ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 145 ("Section 145") of the Delaware General Corporation Law ("DGCL") provides a detailed statutory framework covering indemnification of officers and directors against liabilities and expenses arising out of legal proceedings brought against them by reason of their being or having been directors or officers. Section 145 generally provides that a director or officer of a corporation (i) shall be indemnified by the corporation for all expenses of such legal proceedings when he is successful on the merits, (ii) may be indemnified by the corporation for the expenses, judgments, fines and amounts paid in settlement of such proceedings (other than a derivative suit), even if he is not successful on the merits, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful, and (iii) may be indemnified by the corporation for the expenses of a derivative suit (a suit by a stockholder alleging a breach by a director or officer of a duty owed to the corporation), even if he is not successful on the merits, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation. No indemnification may be made under clause (iii) above, however, if the director or officer is adjudged liable for negligence or misconduct in the performance of his duties to the corporation, unless a corporation determines that, despite such adjudication, but in view of all the circumstances, he is entitled to indemnification. The indemnification described in clauses (ii) and (iii) above may be made only upon a determination that indemnification is proper because the applicable standard of conduct has been met. Such a determination may be made by a majority of a quorum of disinterested directors, independent legal counsel, the stockholders or a court of competent jurisdiction. The Company's Certificate of Incorporation provides that the Company shall indemnify to the fullest extent permitted by Section 145, as it now exists or as amended, all persons whom it may indemnify pursuant thereto. Section 102(b)(7) of the DGCL permits a corporation to provide in its Certificate of Incorporation that a director of the corporation shall not be personally liable to the corporation 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 which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit. The Company's Certificate of Incorporation provides for the elimination of personal liability of a director for breach of fiduciary duty, as permitted by Section 102(b)(7) of the DGCL. Section 7 of the Form of Underwriting Agreement, attached as Exhibit 1.1 to the Registration Statement on Form S-1, contains certain provisions relating to indemnification. The Company intends to obtain liability insurance insuring the Company's officers and directors against liabilities that they may incur in such capacities. II-2 Page 3 of 11 Pages 4 The Company has entered into agreements to indemnify its directors and executive officers, in addition to indemnification provided for in the Company's charter documents. These agreements, among other things, provide for the indemnification of the Company's directors and executive officers for certain expenses (including attorneys' fees), judgments, fines and settlement amounts incurred by any such person in any action or proceeding, including any action by or in the right of the Company, arising out of such person's services as a director or executive officer of the Company, any subsidiary of the Company or any other company or enterprise to which such person provides services at the request of the Company to the fullest extent permitted by applicable law. The Company believes that these provisions and agreements will assist the Company in attracting and retaining qualified persons to serve as directors and executive officers. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. II-3 Page 4 of 11 Pages 5 ITEM 8. EXHIBITS. 4.1 Form of Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 to the Registrant's Registration Statement on Form S-1 (Commission File No. 333-6857) which became effective on October 24, 1996 (the "Registration Statement on Form S-1")). 4.2 Registrant's Amended and Restated Bylaws (incorporated by reference to Exhibit 3.2 to the Registration Statement on Form S-1). 4.3 1996 Stock Incentive Plan and 1996 Employee Stock Purchase Plan and form of Stock Option Agreements (incorporated by reference to Exhibits 10.13, 10.14, 10.15 and 10.16 to the Registration Statement on Form S-1). 5.1 Opinion of Morrison & Foerster LLP. 23.1 Consent of Morrison & Foerster LLP (contained in Exhibit 5.1). 23.2 Consent of Ernst & Young LLP, independent auditors. 24.1 Power of Attorney (See page II-7). ITEM 9. UNDERTAKINGS. (a) 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; (iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in the Registration Statement. II-4 Page 5 of 11 Pages 6 Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if this Registration Statement is on Form S-3 or Form S-8 and 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 Exchange Act that are incorporated by reference in this 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 herein, 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. (b) 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. (c) 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 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 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, 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. II-5 Page 6 of 11 Pages 7 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, Infinity Financial Technology, Inc. certifies that it has reasonable grounds to believe that it meets all 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 Mountain View, State of California, on October 24, 1996. INFINITY FINANCIAL TECHNOLOGY, INC. By: /s/ Terry H. Carlitz -------------------------------- Terry H. Carlitz Chief Financial Officer and Vice President, Finance POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints, severally and not jointly, Roger A. Lang and Terry H. Carlitz, with full power to act alone, his true and lawful attorneys-in-fact, with the 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, 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 full power and authority to do and perform each and every act and thing requisite and necessary to be done as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact 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/ Roger A. Lang President, Chief Executive Officer and Oct. 24, 1996 - --------------------------------------------- Director (Principal Executive Officer) Roger A. Lang /s/ Terry H. Carlitz Chief Financial Officer and Vice Oct. 24, 1996 - --------------------------------------------- President, Finance (Principal Financial Terry H. Carlitz and Accounting Officer)
II-6 Page 7 of 11 Pages 8 /s/ Charles H. Marston Director Oct. 24, 1996 - --------------------------------------------- Charles H. Marston /s/ Till M. Guldimann Director Oct. 24, 1996 - --------------------------------------------- Till M. Guldimann /s/ John C. Lewis Director Oct. 24, 1996 - --------------------------------------------- John C. Lewis /s/ Douglas M. Leone Director Oct. 24, 1996 - --------------------------------------------- Douglas M. Leone /s/ James Dorrian Director Oct. 24, 1996 - --------------------------------------------- James Dorrian
9 EXHIBIT INDEX
EXHIBIT SEQUENTIAL NUMBER DESCRIPTION PAGE NO. - ------- ----------- ---------- 4.1 Form of Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 to the Registrants' Registration Statement on Form S-1 (Commission File No. 333-8647) which became effective on October 24, 1996 (the "Registration Statement on Form S-1")). 4.2 Registrant's Amended and Restated Bylaws (incorporated by reference to Exhibit 3.2 to the Registration Statement on Form S-1). 4.3 1996 Stock Incentive Plan and 1996 Employee Stock Purchase Plan and form of Stock Option Agreements (incorporated by reference to Exhibit 10.5 to the Registration Statement on Form S-1). 5.1 Opinion of Morrison & Foerster LLP. 10 23.1 Consent of Morrison & Foerster LLP (contained in Exhibit 5.1). 10 23.2 Consent of Ernst & Young LLP, independent auditors. 11 24.1 Power of Attorney (See pages II-6, II-7). 6/7
II-8 Page 9 of 11 Pages EX-5.1 2 OPINION OF MORRISON & FOERSTER LLP. 1 Exhibit 5.1 MORRISON & FOERSTER LLP Palo Alto, California October 24, 1996 Infinity Financial Technology, Inc. 640 Clyde Court Mountain View, CA 94043 Gentlemen: At your request, we have examined the Registration Statement on Form S-8 executed by you on October 24, 1996, and to be filed with the Securities and Exchange Commission (the "SEC") in connection with the registration under the Securities Act of 1933, as amended, of an aggregate of 1,100,000 shares of your common stock, $.001 par value (the "Common Stock") which will be issuable under the 1996 Stock Incentive Plan and the 1996 Employee Stock Purchase Plan (the "Plans"). As your counsel in connection with the Registration Statement, we have examined the proceedings taken by you in connection with the adoption of the Plans and the authorization of the issuance of the shares of Common Stock under the Plans (the "Plan Shares") and such documents as we have deemed necessary to render this opinion. Based upon the foregoing, it is our opinion that the Plan Shares, when issued and outstanding pursuant to the terms of the Plans, will be validly issued, fully paid and nonassessable shares of Common Stock. We consent to the use of this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ Morrison & Foerster LLP Page 10 of 11 Pages EX-23.2 3 CONSENT OF INDEPENDANT AUDITORS 1 Exhibit 23.2 CONSENT OF ERNST & YOUNG, INDEPENDENT AUDITORS We consent to the incorporation by reference in this Registration Statement (Form S-8) pertaining to the 1996 Stock Incentive Plan and 1996 Employee Stock Purchase Plan of our reports dated March 7, 1996, except for Note 8 as to which the date is September 23, 1996, with respect to the consolidated financial statements and schedule of Infinity Financial Technology, Inc., included in its Registration Statement (Form S-1, No 333-8647) for the year end December 31, 1995, filed with the Securities and Exchange Commission. ERNST & YOUNG LLP Palo Alto, California October 24, 1996 Page 11 of 11 Pages -----END PRIVACY-ENHANCED MESSAGE-----