As filed with the Securities and Exchange Commission on February 1, 2000
Registration No. 333-_____
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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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FAIR, ISAAC AND COMPANY, INCORPORATED
(Exact name of Registrant as specified in its charter)
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Delaware 94-1499887
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
200 Smith Ranch Road
San Rafael, California 94903
(Address of principal executive offices) (Zip code)
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Fair, Isaac and Company, Incorporated
1999 Employee Stock Purchase Plan
(Full title of the plans)
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Peter L. McCorkell, Esq.
Executive Vice President, Secretary,
and General Counsel
Fair, Isaac and Company, Incorporated
200 Smith Ranch Road
San Rafael, CA 94903
(415) 472-2211
(Telephone number, including area code, of agent for service)
Copies to:
Barry W. Homer, Esq.
Brobeck, Phleger & Harrison LLP
One Market Plaza
San Francisco, California 94105
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This Registration Statement shall become effective immediately upon filing with
the Securities and Exchange Commission in accordance with Section 8(a) of the
Securities Act of 1933, as amended, (the "1933 Act") and Rule 462 thereunder.
CALCULATION OF REGISTRATION FEE
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Amount Proposed Maximum Proposed Maximum Amount of
Title of Securities to be Offering Price Aggregate Registration
to be Registered Registered per Share Offering Price Fee
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Common Stock, $0.01 par value 1,500,000 shares(1) $ 52.1875 (2) $ 78,281,250 (2) $ 20,666.25
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(1) This Registration Statement also covers any additional shares of Common
Stock that are issued under the Registrant's 1999 Employee Stock
Purchase Plan by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the
receipt of consideration which results in an increase in the number of
Registrant's outstanding shares of Common Stock.
(2) Estimated solely for purposes of determining the registration fee on
the basis of the average of the high and low prices as reported on the
New York Stock Exchange on January 24, 2000.
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PART II
Information Required in the Registration Statement
Item 3. Incorporation of Certain Documents by Reference
The following documents of the Registrant filed with the Commission
(File No. 001-13803) are incorporated by reference:
(a) The Registrant's Registration Statement on Form 8-B filed on June 12,
1997, pursuant to Section 12(g) of the Exchange Act;
(b) The Registrant's Annual Report on Form 10-K for the year ended
September 30, 1999
(c) The description of the Common Stock, par value $0.01 per share ("Common
Stock"), of Registrant contained in the Registrant's Registration
Statement on Form 8-A filed with the Commission on April 9, 1996,
including any subsequent amendment or report filed for the purpose of
updating such information;
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934 (the "1934 Act") after the date of this Registration Statement and prior to
the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which designates 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 or deemed to be
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 subsequently filed document which also is deemed to
be incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
Item 5. Interests of Named Experts and Counsel
Peter L. McCorkell, Esq. will pass on the legality of the securities
offered hereby for the Registrant. Mr. McCorkell is Executive Vice President,
Secretary and General Counsel of the Registrant.
Item 6. Indemnification of Directors and Officers
The Registrant is a Delaware corporation. Section 145 of the Delaware
General Corporations Law (the "Delaware Law") empowers a Delaware corporation to
indemnify any persons who are, or are threatened to be made, parties to any
threatened, pending or completed legal action, suit or proceedings, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of such corporation), by reason of the fact that such person was an
officer or director of such corporation, or is or was serving at the request of
such corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, provided that such officer or director acted in good faith and in a
manner he reasonably believed to be in or not opposed to the corporation's best
interests, and, for criminal proceedings, had no reasonable cause to believe his
conduct was illegal. A Delaware corporation may indemnify officers and directors
in an action by or in the right of the corporation under the same conditions,
except that no indemnification is permitted without judicial approval if the
officer or director is adjudged to be liable to the corporation in the
performance of his duty. Where an officer or director is successful on the
merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses which such officer or
director actually and reasonably incurred.
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Article 6 of the Registrant's restated Certificate of Incorporation
provides as follows:
"(a) A director of the corporation shall not be 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 Delaware General
Corporation Law, or (iv) for any transaction from which the director
derived an improper personal benefit.
(b) Each director or officer of the corporation who was or is made a party
or is threatened to be made a party to or is in any way involved in any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (including without limitation any
action, suit or proceeding brought by or in the right of the corporation to
procure a judgment in its favor) (hereinafter a "proceeding"), including
any appeal therefrom, by reason of the fact that he or she, or a person of
whom he or she is a legal representative, is or was a director or officer
of the corporation or of a subsidiary of the corporation, or is or was
serving at the request of the corporation as a director or officer of
another entity or enterprise, or was a director or officer for a foreign or
domestic corporation which was a predecessor corporation of the corporation
or of another entity or enterprise at the request of the predecessor
corporation, or by reason of anything done or not done in such capacity,
shall be indemnified and held harmless by the corporation, and the
corporation shall advance all expenses incurred by any such person in
connection with any such proceeding prior to its final determination, to
the fullest extent authorized by the Delaware General Corporation Law. In
any proceeding against the corporation to enforce these rights, such person
shall be presumed to be entitled to indemnification and the corporation
shall have the burden of proof to overcome that presumption. The rights to
indemnification and advancement of expenses conferred by this Article shall
be presumed to have been relied upon by directors and officers of the
corporation in serving or continuing to serve the corporation and shall be
enforceable as contract rights. Said rights shall not be exclusive of any
other rights to which those seeking indemnification may otherwise be
entitled. The corporation may, upon written demand presented by a director
or officer of the corporation or of a subsidiary of the corporation, or by
a person serving at the request of the corporation as a director or officer
of another entity or enterprise, enter into contracts to provide such
persons with specific rights to indemnification, which contracts may confer
rights and protections to the maximum extent permitted by the Delaware
General Corporation Law. The corporation may create trust funds, grant
security interests, obtain letters of credit, or use other means to ensure
payment of such amounts as may be necessary to perform the obligations
provided for in this Article 6 or in any such contract."
The effect of these provisions is to eliminate the rights of the
Registrant and its stockholders (through stockholders' derivative suits on
behalf of the Registrant) to recover monetary damages against a director for
breach of fiduciary duty of care as a director (including breaches resulting
from negligent or grossly negligent behavior) except in certain limited
situations. These provisions do not limit or eliminate the rights of the
Registrant or any stockholder to seek non-monetary relief such as an injunction
or rescission in the event of a breach of a director's duty of care. These
provisions will not alter the liability of directors under federal securities
law.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
Exhibit Number Exhibit
- -------------- -------
5 Opinion of Peter L. McCorkell, Esq., Executive Vice
President, Secretary, and General Counsel of the
Registrant regarding the legality of the securities
being offered
23.1 Consent of KPMG LLP
23.2 Consent of Peter L. McCorkell, Esq. (Included in
Exhibit 5)
24 Power of Attorney. Reference is made to the signature
page of this Registration Statement.
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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 1933 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, and (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 clauses (1)(i) and (1)(ii) shall 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 Registrant pursuant to
Section 13 or Section 15(d) of the 1934 Act that are incorporated by reference
into the Registration Statement; and (2) that for the purpose of determining any
liability under the 1933 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; and (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 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the 1934 Act) that is incorporated by reference
into 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 1933
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 1933 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 of 1933 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,
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 Rafael, State of California, on 1st day of
February, 2000.
FAIR, ISAAC AND COMPANY, INCORPORATED
By: /s/Peter L. McCorkell
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Peter L. McCorkell
Executive Vice President, Secretary,
and General Counsel
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Fair, Isaac and Company,
Incorporated, a Delaware corporation, do hereby constitute and appoint Peter L.
McCorkell, Executive Vice President, Secretary, and General Counsel, the lawful
attorney-in-fact and agent, with full power and authority to do any and all acts
and things and to execute any and all instruments which said attorney and agent
determines may be necessary or advisable or required to enable said corporation
to comply with the Securities Act of 1933, as amended, and any rules or
regulation or requirements of the Commission in connection with this
Registration Statement. Without limiting the generality of the foregoing power
and authority, the powers granted include the power and authority to sign the
names of the undersigned officers and directors in the capacities indicated
below to this Registration Statement, to any and all amendments, both
pre-effective and post-effective, and supplements to this Registration Statement
and to any and all instruments or documents filed as part of or in conjunction
with this Registration Statement or amendments or supplements thereof, and each
of the undersigned hereby ratifies and confirms all that said attorneys and
agents, or any one of them, shall do or cause to be done by virtue hereof. This
Power of Attorney may be signed in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signatures Title Date
- ---------- ----- ----
/s/ Thomas G. Grudnowski President, Chief Executive Officer February 1, 2000
- ------------------------------- (Principal Executive Officer) and Director
Thomas G. Grudnowski
/s/ Henk J. Evenhuis Executive Vice President and Chief Financial February 1, 2000
- ------------------------------- Officer (Principal Financial Officer)
Henk J. Evenhuis
/s/ A George Battle Director February 1, 2000
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A George Battle
/s/ H. Robert Heller Director February 1, 2000
- -------------------------------
H. Robert Heller
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/s/ Guy R. Henshaw Director February 1, 2000
- -------------------------------
Guy R. Henshaw
/s/ David S. P. Hopkins Director February 1, 2000
- -------------------------------
David S. P. Hopkins
/s/ Robert M. Oliver Director February 1, 2000
- -------------------------------
Robert M. Oliver
/s/ Robert D. Sanderson Director February 1, 2000
- -------------------------------
Robert D. Sanderson
/s/ John D. Woldrich Director February 1, 2000
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John D. Woldrich
/s/ Tony J. Christianson Director February 1, 2000
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Tony J. Christianson
/s/ Margaret L. Taylor Director February 1, 2000
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Margaret L. Taylor
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
FAIR, ISAAC AND COMPANY, INCORPORATED
7
EXHIBIT INDEX
Exhibit Number Exhibit
- -------------- -------
5 Opinion of Peter L. McCorkell, Esq.
23.1 Consent of KPMG LLP
23.2 Consent of Peter L. McCorkell, Esq. (Included in
Exhibit 5)
24 Power of Attorney. Reference is made to the signature
page of this Registration Statement.
8
Exhibit 5 and 23.1
[Letterhead of Fair, Isaac and Company, Incorporated]
-----, ----
Fair, Isaac and Company, Incorporated
200 Smith Ranch Road
San Rafael, CA 94903
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
With reference to the Registration Statement on Form S-8 to be filed by Fair,
Isaac and Company, Incorporated, a Delaware corporation (the "Company"), with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended, relating to the 1,500,000 shares of the Company's common stock, par
value $0.01 per share (the "Common Stock"), issuable pursuant to the Fair, Isaac
and Company, Incorporated 1999 Employee Stock Purchase Plan (the "Plan"), it is
my opinion that such shares of the Common Stock of the Company, when issued and
sold in accordance with the Plan, will be legally issued, fully paid and
nonassessable.
I hereby consent to the filing of this opinion with the Securities and Exchange
Commission as Exhibit 5.1 to the Registration Statement.
Very truly yours,
/s/ Peter L. McCorkell, Esq.
Peter L. McCorkell, Esq.
Executive Vice President, Secretary,
and General Counsel
Fair, Isaac and Company, Incorporated
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Exhibit 23.1
[KPMG LLP LETTERHEAD]
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Fair, Isaac and Company, Incorporated:
We consent to incorporation by reference in the registration statement on Form
S-8 of Fair, Isaac and Company, Incorporated and subsidiaries of our reports
dated October 26, 1999, relating to the consolidated balance sheets of Fair,
Isaac and Company, Incorporated and subsidiaries as of September 30, 1999 and
1998, and the related consolidated statements of income and comprehensive
income, stockholders' equity, and cash flows for each of the years in the
three-year period ended September 30, 1999, and the related schedule, which
reports appear or are incorporated by reference in the September 30, 1999 annual
report on Form 10-K of Fair, Isaac and Company, Incorporated, and subsidiaries.
/s/ KPMG LLP
San Francisco, California
February 1, 2000
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