forms8.htm
As
filed with the Securities and Exchange Commission on May 6,
2008 Registration No.
333-
UNITED STATES SECURITIES AND EXCHANGE
COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
CHORDIANT
SOFTWARE, INC.
(Exact
name of registrant as specified in its charter)
Delaware
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93-1051328
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(State
of Incorporation)
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(I.R.S.
Employer Identification No.)
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20400
Stevens Creek Blvd., Suite #400
Cupertino,
CA 95014
(Address
of principal executive offices)
____________________
2005
Equity Incentive Plan
(Full
title of the plan)
____________________
Derek
Witte
Chordiant
Software, Inc.
General
Counsel
20400
Stevens Creek Blvd., Suite #400
Cupertino,
CA 95014
(408)
517-6100
(Name,
address, including zip code, and telephone number, including area code, of agent
for service)
____________________
Copies
to:
Nancy
H. Wojtas, Esq.
Cooley
Godward Kronish LLP
Five
Palo Alto Square
3000
El Camino Real
Palo
Alto, California 94306
(650)
843-5000
____________________
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act:
Large
accelerated filer o
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Accelerated
filer x
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Non-accelerated
filer o
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(Do
not check if a smaller reporting company)
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Smaller
reporting company o
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CALCULATION
OF REGISTRATION FEE
Title
of Securities to be
Registered
|
Amount
to be
Registered
(1)
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Proposed
Maximum
Offering
Price
per
Share (2)
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Proposed
Maximum
Aggregate
Offering
Price
(2)
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Amount
of Registration
Fee
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Common
Stock (par value $0.001 per share)
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700,000
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$ 4.54
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$ 3,174,500
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$ 125
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(1)
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Pursuant
to Rule 416(a), this Registration Statement shall also cover any
additional shares of Registrant’s Common Stock that become issuable under
the plans by reason of any stock dividend, stock split, recapitalization
or other similar transaction effected without receipt of consideration
that increases the number of outstanding shares of Registrant’s Common
Stock.
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(2)
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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 shares available for future grant or purchase under the
Company's 2005 Equity Incentive Plan and the average of the high and low
prices of the Company's Common Stock on April 30, 2008, as reported on the
Nasdaq National Market (pursuant to Rule 457(c) under the Act). The
following chart illustrates the calculation of the registration
fee:
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Securities
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Number
of Shares
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Offering
Price Per Share
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Aggregate
Offering Price
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Common
Stock available for grant under the 2005 Equity Incentive Plan, as amended
(the “2005 Plan”)
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700,000
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$ 4.54
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$ 3,174,500
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Total
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700,000
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$ 4.54
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$ 3,174,500
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Registration
Fees
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$ 125
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INCORPORATION
OF DOCUMENTS BY REFERENCE
The
following documents filed by Chordiant Software, Inc., a Delaware corporation
(the "Company" or the "Registrant") with the Securities and Exchange Commission
(the "Commission") are incorporated by reference into this Registration
Statement:
a.
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The
Company's Annual Report on Form 10-K for the fiscal year ended September
30, 2007, filed on November 15, 2007, with the Commission pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), that contains audited financial statements for the
Company's latest fiscal year;
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b.
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The
Company’s Current Report on Form 8-K, filed on December 27, 2007, with the
Commission;
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c.
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The
Company’s Current Report on Form 8-K, filed on January 16, 2008, with the
Commission;
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d.
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The
Company’s Current Report on Form 8-K, filed on February 7, 2008, with the
Commission;
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e.
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The
Company’s Current Report on Form 8-K, filed on March 3, 2008, with the
Commission;
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f.
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The
Company’s Quarterly Report on Form 10-Q for the quarter ended March 31,
2008;
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g.
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The
Company’s Current Report on Form 8-K, filed on April 1, 2008, with the
Commission;
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h.
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The
description of the Company’s common stock contained in our Registration
Statement on Form 8-A12G filed with the Commission on February 7,
2000;
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i.
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All
reports and other documents subsequently filed by the Company 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.
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DESCRIPTION
OF SECURITIES
Not
applicable.
INTERESTS
OF NAMED EXPERTS AND COUNSEL
Not
applicable.
INDEMNIFICATION
OF DIRECTORS AND OFFICERS
Under
Section 145 of the Delaware General Corporation Law, the Company 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 Amended and Restated Certificate of Incorporation and Amended and
Restated Bylaws include provisions to (i) eliminate the personal liability of
its Directors for monetary damages resulting from breaches of their fiduciary
duty to the extent permitted by Section 102(b)(7) of the General Corporation Law
of Delaware (the "Delaware Law") or any other applicable law; and (ii) require
the Registrant to indemnify its Directors and officers to the fullest extent
permitted by the Delaware Law or any other applicable law. Pursuant to Section 145
of the Delaware Law, a corporation generally has the power to indemnify its
present and former directors, officers, employees and agents against expenses
incurred by them in connection with any suit to which they are or are threatened
to be made, a party by reason of their serving in such positions so long as they
acted in good faith and in a manner they reasonably believed to be in or not
opposed to, the best interests of the corporation and with respect to any
criminal action, they had no reasonable cause to believe their conduct was
unlawful. The Registrant believes that these provisions are necessary to attract
and retain qualified persons as Directors and officers. These provisions do not
eliminate the Directors' duty of care, and, in appropriate circumstances,
equitable remedies such as injunctive or other forms of non-monetary relief will
remain available under Delaware Law. In addition, each Director will continue to
be subject to liability for breach of the Director's duty of loyalty to the
Registrant, for acts or omissions not in good faith or involving intentional
misconduct, for knowing violations of law, for acts or omissions that the
Director believes to be contrary to the best interests of the Registrant or its
stockholders, for any transaction from which the Director derived an improper
personal benefit, for acts or omissions involving a reckless disregard for the
Director's duty to the Registrant or its stockholders when the Director was
aware or should have been aware of a risk of serious injury to the Registrant or
its stockholders, for acts or omissions that constitute an unexcused pattern of
inattention that amounts to an abdication of the Director's duty to the
Registrant or its stockholders, for improper transactions between the Director
and the Registrant and for improper distributions to stockholders and loans to
officers. The provisions also do not affect a Director's responsibilities under
any other law, such as the federal securities law or state or federal
environmental laws.
The
Registrant has entered into indemnity agreements with each of its Directors and
executive officers that require the Registrant to indemnify such persons against
expenses, judgments, fines, settlements and other amounts incurred (including
expenses of a derivative action) in connection with any proceeding, whether
actual or threatened, to which any such person may be made a party by reason of
the fact that such person is or was a Director or an executive officer of the
Registrant or any of its affiliated enterprises, provided that such person acted
in good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the Registrant and, with respect to any
criminal proceeding, had no reasonable cause to believe his conduct was
unlawful. The indemnification agreements also set forth certain procedures that
will apply in the event of a claim for indemnification thereunder.
The
Registrant has an insurance policy covering the officers and Directors of the
Registrant with respect to certain liabilities, including liabilities arising
under the Securities Act or otherwise.
EXEMPTION
FROM REGISTRATION CLAIMED
Not
applicable.
EXHIBITS
Exhibit
Number
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Description
of Document
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3.1(1)
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Amended and Restated Certificate of Incorporation
of Chordiant Software, Inc.
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3.2(2)
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Certificate of Amendment to the Amended and
Restated Certificate of Incorporation of Chordiant Software,
Inc.
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3.3(3)
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Amended and Restated Bylaws of Chordiant Software,
Inc.
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5.1
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Opinion
of Cooley Godward Kronish LLP
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23.1
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Consent
of BDO Seidman LLP
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23.2
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Consent
of Cooley Godward Kronish LLP (Reference is made to Exhibit
5.1)
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24.1
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Power
of Attorney (Reference is made to Signature Page)
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99.1(4)
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2005
Equity Incentive Plan, as amended
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(1) Filed as Exhibit 3.1 with Chordiant’s Registration
Statement on Form S-1 (No. 333-92187) filed on December 6, 1999 and incorporated
herein by reference
(2) Filed as Appendix A to the Company’s Definitive Proxy
Statement filed with the Commission on January 4, 2007 and incorporated herein
by reference.
(3) Filed as Exhibit 3.2 with Chordiant’s Current Report on
Form 8-K filed on February 2, 2006 and incorporated herein by
reference.
(4) Filed
as Appendix A to the Company’s Definitive Proxy Statement filed with the
Commission on December 21, 2007 and incorporated herein by
reference.
UNDERTAKINGS
1.
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The
undersigned registrant hereby
undertakes:
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(a) 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
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 with the Commission pursuant to Rule 424(b) (§ 230.424(b) of
this chapter) if, in the aggregate, the changes in volume and price represent no
more than a 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 (a)(i) and (a)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the issuer pursuant to section 13 or section 15(d) of
the Exchange Act that are incorporated by reference herein.
(b) 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.
(c) 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.
2.
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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 herein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
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3.
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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 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,
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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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 Cupertino, State of California, on May 6,
2008.
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Chordiant
Software, Inc.
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By:
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/s/ STEVEN
R. SPRINGSTEEL
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Steven
R. Springsteel
Chairman,
President and Chief Executive Officer
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POWER
OF ATTORNEY
Know All
Persons By These Presents, that each person whose signature appears below
constitutes and appoints Steven R. Springsteel and Derek Witte, and each or any
one of them, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, 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 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 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 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
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Title
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Date
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/s/
STEVEN R. SPRINGSTEEL
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Chairman,
President, and Chief Executive Officer
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April
30, 2008
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Steven
R. Springsteel
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(Principal
Executive Officer)
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/s/
PETER S. NORMAN
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Chief
Financial Officer
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April
30, 2008
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Peter
S. Norman
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(Principal
Financial and Accounting Officer)
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/s/
CHARLES E. HOFFMAN
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Director
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April
30, 2008
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Charles
E. Hoffman
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/s/
WILLIAM J. RADUCHEL
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Director
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April
30, 2008
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William
J. Raduchel
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/s/
DAVID R. SPRINGETT
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Director
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April
30, 2008
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David
R. Springett
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/s/
RICHARD G. STEVENS
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Director
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April
30, 2008
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Richard
G. Stevens
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/s/
DANIEL A. GAUDREAU
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Director
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April
30, 2008
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Daniel
A. Gaudreau
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/s/
ALLEN A.A. SWANN
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Director
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April
30, 2008
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Allen
A.A. Swann
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EXHIBIT
INDEX
EXHIBITS
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Exhibit
Number
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Description
of Document
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3.1(1)
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Amended and Restated Certificate of Incorporation
of Chordiant Software, Inc.
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3.2(2)
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Certificate of Amendment to the Amended and
Restated Certificate of Incorporation of Chordiant Software,
Inc.
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3.3(3)
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|
Amended and Restated Bylaws of Chordiant Software,
Inc.
|
|
5.1
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|
Opinion
of Cooley Godward Kronish LLP
|
|
23.1
|
|
Consent
of BDO Seidman LLP
|
|
23.2
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|
Consent
of Cooley Godward Kronish LLP (Reference is made to Exhibit
5.1)
|
|
24.1
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|
Power
of Attorney (Reference is made to Signature Page)
|
|
99.1(4)
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2005
Equity Incentive Plan, as amended
|
|
|
|
(1) Filed as Exhibit 3.1 with Chordiant’s
Registration Statement on Form S-1 (No. 333-92187) filed on December 6, 1999 and
incorporated herein by reference.
(2) Filed as Appendix A to the Company’s Definitive Proxy
Statement filed with the Commission on January 4, 2007 and incorporated herein
by reference.
(3) Filed as Exhibit 3.2 with Chordiant’s Current Report on
Form 8-K filed on February 2, 2006 and incorporated herein by
reference.
(4) Filed
as Appendix A to the Company’s Definitive Proxy Statement filed with the
Commission on December 21 , 2007 and
incorporated herein by reference.