As filed with the Securities and Exchange Commission on June 30, 2011
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SUCCESSFACTORS, INC.
(Exact name of Registrant as specified in its charter)
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Delaware
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94-3398453
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(State or other jurisdiction of
incorporation or organization)
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(IRS Employer
Identification No.)
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1500 Fashion Island Blvd., Suite 300
San Mateo, CA 94404
(650) 645-2000
(Address, including zip code, and telephone number,
including area code, of Registrants principal executive offices)
Lars Dalgaard
Chief Executive Officer
1500 Fashion Island Blvd., Suite 300
San Mateo, CA 94404
(650) 645-2000
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
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Jeffrey R. Vetter, Esq.
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Hillary B. Smith, Esq.
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Fenwick & West LLP
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Vice President, General Counsel and Secretary
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801 California St.
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SuccessFactors, Inc.
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Mountain View, CA 94041
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1500 Fashion Island Blvd., Suite 300
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(650) 988-8500
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San Mateo, CA 94404
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(650) 645-2000
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Approximate date of commencement of proposed sale to the public:
From time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following
box.
¨
If any of the securities being registered on this Form are to
be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.
x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the
Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
¨
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering.
¨
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e)
under the Securities Act, check the following box.
x
If this Form is a
post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following
box.
¨
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 the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of
the Exchange Act.
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Large accelerated filer
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x
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Accelerated filer
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Non-accelerated filer
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(Do not check if a smaller reporting company)
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Smaller reporting company
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¨
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of
Securities to be Registered
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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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3,407,130
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$29.11
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$99,181,555
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$11,514
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(1)
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In accordance to Rule 416(a), the Registrant is also registering hereunder an indeterminate number of shares that may be issued and resold resulting from stock splits,
stock dividends or similar transactions.
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(2)
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Estimated pursuant to Rule 457(c) under the Securities Act of 1933, as amended, solely for the purposes of calculating the registration fee, upon the basis of the
average high and low prices of the Registrants common stock reported on The Nasdaq Global Select Market on June 28, 2011.
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PROSPECTUS
SuccessFactors, Inc.
3,407,130 Shares of Common Stock
This prospectus
relates to an aggregate of up to 3,407,130 shares of common stock of SuccessFactors, Inc. that may be resold from time to time by the selling stockholders named on pages 4 and 5 of this prospectus for their own account. We will not receive any
proceeds from the sale of shares offered by the selling stockholders. See Selling Stockholders and Plan of Distribution.
The selling stockholders acquired the shares in connection with the consummation of our acquisition of all of the outstanding capital stock of Plateau Systems Holdings, Inc. The selling stockholders may
sell the shares directly to purchasers or, through underwriters, broker-dealers or agents, who may receive compensation in the form of discounts, concessions or commissions. The selling stockholders may sell the shares at any time at market prices
prevailing at the time of sale, at prices related to such market prices, at a fixed price or prices subject to change or at privately negotiated prices. This prospectus describes the general manner in which the shares may be offered and sold by the
selling stockholders. If necessary, the specific manner in which the shares may be offered and sold will be described in a supplement to this prospectus.
Our common stock trades on The Nasdaq Global Select Market under the symbol SFSF. On June 28, 2011, the closing sale price of our common stock, as reported on The Nasdaq Global Select
Market, was $28.40 per share.
Investing in our securities involves risks. See the
Risk Factors
section of this prospectus to
read about where you can find the risk factor information that you should consider before buying shares of our common stock.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
The date of
this prospectus is June 30, 2011.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement on Form S-3 under the Securities Act of 1933, as amended (the Securities
Act), that we filed with the SEC, as a well-known seasoned issuer as defined in Rule 405 under the Securities Act, using a shelf registration, or continuous offering, process. Under this shelf registration process, the
selling stockholders may, from time to time, sell or otherwise dispose of up to 3,407,130 shares of our common stock.
You
should rely only on the information we have provided or incorporated by reference in this prospectus. We have not authorized anyone to provide you with additional or different information. No dealer, salesperson or other person is authorized to give
any information or to represent anything not contained in this prospectus. You must not rely on any unauthorized information or representation. You should not assume that the information contained in this prospectus or any prospectus supplement is
accurate as of any date other than the date on the front cover of those documents. This prospectus does not constitute an offer to sell, or a solicitation of an offer to purchase, the securities offered by this prospectus in any jurisdiction where
such offer or sale is not permitted.
This prospectus incorporates by reference important business and financial information
about us that is not included in or delivered with this document. You should read the additional information described under Where You Can Find More Information and Incorporation of Certain Information by Reference on page 7.
This prospectus may be supplemented from time to time by one or more prospectus supplements. Any such prospectus supplements
may include additional information, such as additional risk factors or other special considerations applicable to us, our business or results of operations or our common stock, and may also update or change the information in this prospectus. If
there is any inconsistency between the information in this prospectus and any prospectus supplement, you should rely on the information in the prospectus supplement.
Unless the context otherwise requires, the terms we, our, us, and SuccessFactors refer to SuccessFactors, Inc., a Delaware corporation.
1
PROSPECTUS SUMMARY
This section contains a general summary of information contained elsewhere in this prospectus. It may not include all of the information
that is important to you. Our business is subject to a number of risks, which we describe in the Risk Factors in our Annual Report on Form 10-K for the fiscal year ended December 31, 2010, filed with the SEC on March 8, 2011
and Quarterly Report on Form 10-Q for the quarter ended March 31, 2011, filed with the SEC on May 9, 2011, which are incorporated by reference herein. See Incorporation of Certain Information by Reference on page 7. You should
read the entire prospectus, and the documents incorporated by reference before making an investment decision.
SuccessFactors, Inc.
SucessFactors provides on-demand business execution software solutions that enable organizations to bridge the execution gap between business strategy and results. Our goal is to enable organizations to
substantially increase employee productivity worldwide by enhancing its existing people performance solutions with business alignment solutions to enable customers to achieve business results. Our integrated application suite includes the following
modules and capabilities: Performance Management; Goal Management; Compensation Management; Succession Management; Career and Development Planning; Recruiting Management; Employee Central; Analytics and Reporting; CubeTree Social Collaboration;
Employee Profile; 360-Degree Review; Employee Survey; Calibration & Team Rater; and proprietary and third-party content. Our headquarters are located in San Mateo, California. We conduct our business worldwide with additional locations in
other regions in the United States, Europe, Asia, Canada and Latin America.
SuccessFactors and the SuccessFactors
logo are trademarks of SuccessFactors. Other service marks, trademarks and tradenames referred to in this prospectus are the property of their respective owners.
Registration Rights
In connection with the acquisition of all of the
outstanding capital stock of Plateau Systems Holdings, Ind. (Plateau), we have agreed to file a registration statement, of which this prospectus forms a part, and to use our reasonable efforts to keep it effective until the earliest of:
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the date when all of the shares of common stock eligible to be sold by the selling stockholders pursuant to the effective registration statement have
been sold; or
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when such shares may be resold pursuant to Rule 144.
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2
RISK FACTORS
An investment in our common stock involves a high degree of risk. You should carefully consider the risks and uncertainties described in
the Risk Factors sections of our Annual Report on Form 10-K for the fiscal year ended December 31, 2010, filed with the SEC on March 8, 2011, as updated by our Quarterly Report on Form 10-Q for the quarter ended March 31,
2011, filed with the SEC on May 9, 2011, and any other reports that we file pursuant to the Securities Exchange Act of 1934, as amended (the Exchange Act) that are incorporated by reference in this prospectus. Our subsequent filings
with the SEC may contain amended and updated discussions of significant risks. See Incorporation of Certain Information by Reference on page 7. These risk factors should be read together with the financial and other information
contained or incorporated by reference in this prospectus before making a decision to buy our common stock. If any of the risks actually occur, our business, financial condition and results of operations could suffer. In these circumstances, the
market price of our common stock could decline and you may lose all or part of your investment in our common stock.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference in this
prospectus, include or incorporate by reference forward-looking statements within the meaning of Section 27A of the Securities Act, and Section 21E of the Exchange Act. These forward-looking statements include all statements other than
statements of historical facts contained in this prospectus and the documents incorporated by reference in this prospectus, including statements regarding our future financial position, business strategy and the plans and objectives of management
for future operations. Words such as anticipates, expects, intends, plans, believes, seeks, estimates, may, could, will and
variations of these words or similar expressions are intended to identify forward-looking statements.
We have based these
forward-looking statements largely upon our current expectations, estimates and projections about future events and financial trends that we believe may affect our financial condition, results of operations, business strategy, short-term and
long-term business operations and objectives, and financial needs. These statements reflect our beliefs and certain assumptions based upon information made available to us at the time of this prospectus or the time of the documents incorporated by
reference.
Such forward-looking statements are only predictions, which may differ materially from actual results or future
events. Although we believe that our plans, intentions and expectations reflected in the forward-looking statements are reasonable, we cannot be sure that they will be achieved. Among the factors that could cause our actual results to differ
materially from those expressed in or implied by the forward-looking statements are risks and uncertainties described in the Risk Factors set forth in our periodic reports filed with the SEC which are incorporated by reference into this
prospectus. See Risk Factors above. These factors are not intended to represent a complete list of the general or specific factors that may affect us. It should be recognized that other factors, including general economic factors and
business strategies, may be significant, presently or in the future, and the factors set forth in the documents incorporated by reference may affect us to a greater extent than indicated. All forward-looking statements attributable to us or persons
acting on our behalf are expressly qualified in their entirety by the cautionary statements set forth in the documents incorporated by reference. Except as required by law, we undertake no obligation to update any forward-looking statement, whether
as a result of new information, future events or otherwise. You are advised to consult any additional disclosures we make in our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K filed with the SEC. See
Where You Can Find More Information on page 8.
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USE OF PROCEEDS
The selling stockholders will receive all of the net proceeds from the sales of the shares of common stock covered by this prospectus. We
will not receive any proceeds from the sale by the selling stockholders of the shares of common stock.
SELLING STOCKHOLDERS
The following table sets forth information regarding the selling stockholders named below and
the shares that may be offered and sold from time to time by them pursuant to this prospectus. The information set forth below is based on written representations provided to us by the selling stockholders. The selling stockholders named below are
referred to in this prospectus as the selling stockholders.
All of the shares that may be offered and sold
pursuant to this prospectus were issued to the selling stockholders in connection with our acquisition of all the outstanding capital stock of Plateau pursuant to exemptions from the registration requirements of the Securities Act provided by
Section 4(2) thereof and/or Regulation D under the Securities Act. In connection with this acquisition, we agreed to register the shares of common stock offered under this prospectus under the Securities Act. See Registration
Rights on page 2.
The selling stockholders may offer from time to time all or some or none of their shares under this
prospectus. Since the selling stockholders are not obligated to sell, transfer or otherwise dispose of their shares, and because the selling stockholders may acquire our publicly-traded common stock, we cannot estimate how many shares each selling
stockholder will own after this offering. The table below assumes that the selling stockholders will sell the shares of common stock covered by this prospectus.
Unless otherwise indicated in the footnotes below, based on representations made to us by the selling stockholders, none of the selling stockholders has or within the past three years has had, any
position, office or other material relationship with us or any of our affiliates. To our knowledge, none of the selling stockholders are broker-dealers or affiliates of broker-dealers, nor at the time of the acquisition, did any selling stockholder
have direct or indirect agreements or understandings with any person to distribute their shares.
None of the selling
stockholders beneficially own 1% or more of our outstanding common stock, based on 79,791,204 shares of our common stock outstanding as of June 15, 2011.
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Name of Beneficial Owner
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Number
of
Shares Beneficially
Owned Before the
Offering
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Maximum Number
of Shares to be
Offered by Each
Stockholder
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Number
of
Shares Beneficially
Owned After the
Offering
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Morgan Stanley Dean Witter Venture Partners IV, L.P.
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303,086
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303,086
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0
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Morgan Stanley Dean Witter Venture Investors IV, L.P.
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35,162
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35,162
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0
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Morgan Stanley Dean Witter Venture Offshore Investors IV, L.P.
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11,824
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11,824
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0
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Morgan Stanley Venture Partners 2002 Fund, L.P.
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269,350
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269,350
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0
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Morgan Stanley Venture Investors 2002 Fund, L.P.
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80,723
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80,723
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0
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W Capital Partners II, L.P.
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700,147
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700,147
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0
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EuclidSR Partners, L.P.
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660,263
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660,263
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0
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Paul Sparta (1)
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285,160
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285,160
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0
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General Dynamics Corporation (via Veridian via MRJ, Inc)
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41,522
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41,522
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0
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France Lampron
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47,110
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47,110
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0
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Stephen Martin
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18,907
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18,907
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0
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W.B Jones III
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16,831
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16,831
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0
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Richard Royce
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12,234
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12,234
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0
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4
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Miguel DeCampos
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12,234
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12,234
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0
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Anne Allen
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10,973
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10,973
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0
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Philip Radcliffe
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6,376
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6,376
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0
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Morton Goulder
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2,479
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2,479
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0
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W.B Jones Jr
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2,372
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2,372
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0
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Sensory Computing, Inc
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4,442
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4,442
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0
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Merritt Lutz
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2,252
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2,252
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0
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Scott Byrnes
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869
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869
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0
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Virgil Bryant
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74
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74
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0
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Eric Wittig
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1,677
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1,677
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0
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Kevin Gibbs
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233
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233
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0
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Santosh Kumar
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419
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419
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0
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Joseph Dominic
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813
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813
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0
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Ross M.C. Camera
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279
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279
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0
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Srikanth Etikala
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319
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319
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0
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Brian Murphy
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133,464
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133,464
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0
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Bradley Cooper
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274,343
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274,343
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0
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Edward J Cohen
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115,075
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115,075
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0
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William T Burnette
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74,147
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74,147
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0
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Michael Pagliaro
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74,147
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74,147
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0
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Paul Mercadante
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55,610
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55,610
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0
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John Gerlach
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45,971
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45,971
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0
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William M Christie
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45,971
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45,971
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0
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Scott Hamilton
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41,736
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41,736
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0
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Christian Petretich
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18,536
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18,536
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0
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(1)
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The selling stockholder is also an employee of SuccessFactors.
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PLAN OF DISTRIBUTION
The shares of common stock
listed in the table appearing under Selling Stockholders are being registered to permit public secondary trading of these shares by the holders of such shares from time to time after the date of this prospectus. Registration of the
shares of common stock covered by this prospectus does not mean, however, that those shares necessarily will be offered or sold. We will not receive any of the proceeds from the sale of the common stock by the selling stockholders. To our knowledge,
the selling stockholders have not entered into any arrangements or understandings with any underwriter, broker-dealer or agent with respect to the sale of the shares covered by this prospectus.
The selling stockholders may sell such shares from time to time directly to purchasers (including pledgees) or through underwriters,
broker-dealers or agents, at market prices prevailing at the time of sale, at prices related to such market prices, at a fixed price or prices subject to change or at negotiated prices, by a variety of methods including the following:
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through The Nasdaq Global Select Market or on any national securities exchange or quotation service on which the shares of common stock may be listed
or quoted at the time of sale;
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in the over-the-counter market;
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in transactions otherwise than on such exchanges or services or in the over-the-counter market;
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through the exercise of purchased or written options;
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through a combination of any such methods; or
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through any other method permitted under applicable law and our insider trading policy.
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5
In effecting sales, brokers or dealers engaged by the selling stockholders may arrange for
other brokers or dealers to participate. Broker-dealers may receive commissions or discounts from the selling stockholders (or, if any broker-dealer acts as agent for the purchaser of shares, from the purchaser) in amounts to be negotiated.
Broker-dealer transactions may include:
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a block trade in which a broker-dealer may resell all or part of the block, as principal or agent, in order to facilitate the transaction;
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purchases by a broker-dealer, as principal, and a subsequent resale by the broker-dealer for its account;
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pledges of shares to a broker-dealer, who may, in the event of default, purchase or sell the pledged shares; or
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ordinary brokerage transactions and transactions in which a broker solicits purchasers.
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In addition, selling stockholders who are neither an employee of ours nor otherwise subject to our insider trading policy may enter into
option, derivative or hedging transactions with respect to the shares, and any related offers or sales of shares may be made pursuant to this prospectus. For example, the selling stockholders may:
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enter into transactions involving short sales of the shares by broker-dealers in the course of hedging the positions they assume with selling
stockholders;
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sell shares short themselves and deliver the shares registered hereby to settle such short sales or to close out stock loans incurred in connection
with their short positions;
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write call options, put options or other derivative instruments (including exchange-traded options or privately negotiated options) with respect to the
shares, or which they settle through delivery of the shares;
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enter into option transactions or other types of transactions that require the selling stockholder to deliver shares to a broker, dealer or other
financial institution, who may then resell or transfer the shares under this prospectus; or
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lend the shares to a broker, dealer or other financial institution, which may sell the lent shares.
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These option, derivative and hedging transactions may require the delivery to a broker, dealer or other financial institution of shares
offered hereby, and such broker, dealer or other financial institution may resell such shares pursuant to this prospectus.
Brokers, dealers, agents or underwriters participating in transactions as agent may receive compensation in the form of discounts,
concessions or commissions from the selling stockholders (and, if they act as agent for the purchaser of the shares, from such purchaser). The discounts, concessions or commissions as to a particular broker, dealer, agent or underwriter might be in
excess of those customary in the type of transaction involved.
The selling stockholders and any underwriters, brokers,
dealers or agents that participate in such distribution may be deemed to be underwriters within the meaning of the Securities Act, and any discounts, commissions or concessions received by any underwriters, brokers, dealers or agents
might be deemed to be underwriting discounts and commissions under the Securities Act. Neither we nor the selling stockholders can presently estimate the amount of such compensation. Any selling stockholder who is an underwriter within
the meaning of the Securities Act will be subject to the prospectus delivery requirements of the Securities Act and the provisions of the Exchange Act and the rules thereunder relating to stock manipulation.
We will pay substantially all of the expenses incident to this offering of the shares by the selling stockholders to the public other
than commissions and discounts of underwriters, brokers, dealers or agents.
In order to comply with certain states
securities laws, if applicable, the shares sold in those jurisdictions may only be sold through registered or licensed brokers or dealers. In addition, in certain states, the shares may not be sold unless the shares have been registered or qualified
for sale in that state or an exemption from registration or qualification is available and is complied with.
6
We do not assure you that the selling stockholders will sell any or all of the shares
offered by them pursuant to this prospectus. In addition, we do not assure you that the selling stockholders will not transfer, devise or gift the shares by other means not described in this prospectus. Moreover, any shares of common stock covered
by this prospectus that qualify for sale pursuant to Rule 144 may be sold under Rule 144 rather than pursuant to this prospectus.
We may suspend the use of this prospectus if we learn of any event that causes this prospectus to include an untrue statement of a material fact or omit to state a material fact required to be stated in
this prospectus or necessary to make the statements in this prospectus not misleading in light of the circumstances then existing. If this type of event occurs, a prospectus supplement or post-effective amendment, if required, will be distributed to
each selling stockholder.
LEGAL MATTERS
The validity of the shares of common stock offered hereby will be passed upon for us by Fenwick & West LLP, Mountain View,
California.
EXPERTS
The consolidated financial statements of SuccessFactors, Inc. as of and for the year ended December 31, 2010 and managements assessment of the effectiveness of internal control over financial
reporting as of December 31, 2010 have been incorporated by reference herein and in the registration statement in reliance upon the report of KPMG LLP, independent registered public accounting firm, incorporated by reference herein, and upon
the authority of said firm as experts in accounting and auditing. The audit report covering the December 31, 2010 financial statements refers to a change in the accounting for multiple element revenue transactions resulting from the adoption of
a new accounting pronouncement.
Ernst & Young LLP, independent registered public accounting firm, has audited our
consolidated financial statements included in our Annual Report on Form 10-K for the years ended December 31, 2008 and December 31, 2009 and the effectiveness of our internal control over financial reporting as of December 31, 2009,
as set forth in their reports, which are incorporated by reference in this prospectus and elsewhere in the registration statement. Our financial statements are incorporated by reference in reliance on Ernst & Young LLPs reports, given
on their authority as experts in accounting and auditing.
Ernst & Young LLP, independent auditors, has audited the
consolidated financial statements of Plateau Systems, Ltd. for the years ended February 28, 2011, 2010 and 2009, included in our Current Report on Form 8-K dated June 30, 2011, as set forth in their report, which is incorporated by
reference in this prospectus and elsewhere in the registration statement. The financial statements of Plateau Systems, Ltd. are incorporated by reference in reliance on Ernst & Young LLPs report, given on their authority as experts in
accounting and auditing.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference the information we file with them, which means that we can disclose important information
to you by referring you to those documents. We incorporate by reference in this prospectus the information contained in the following documents:
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our annual report on Form 10-K for the fiscal year ended December 31, 2010;
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our quarterly reports on Form 10-Q for the quarters ended March 31, 2011;
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our current reports on Form 8-K filed January 18, 2011, March 22, 2011, March 28, 2011, April 28,
2011, May 25, 2011, June 14, 2011 and June 30, 2011;
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the description of our common stock contained in our registration statement on Form 8-A filed with the SEC on October 19, 2007 under
Section 12(b) of the Exchange Act, including any amendment or report filed for the purpose of updating such description; and
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7
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all documents that we file with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus and prior to the
termination of this offering, as of the date of filing of such documents.
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You may obtain copies of the
documents we incorporate by reference in the registration statement of which this prospectus is a part, from us, free of cost, by making a written or oral request at SuccessFactors, Inc., Attention: Investor Relations, 1500 Fashion Island Blvd.,
Suite 300, San Mateo, California 94404 or (650) 645-2000.
Any statement contained in a document incorporated or deemed
to be incorporated by reference into this prospectus shall be deemed to be modified or superseded for purpose of this prospectus to the extent that a statement contained in this prospectus (or in any document incorporated by reference therein) or in
any other subsequently filed document that is or is deemed to be incorporated by reference into this prospectus 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 prospectus.
To the extent that any information contained in any current report on Form 8-K,
or any exhibit thereto, was furnished to, rather than filed with, the SEC, such information or exhibit is specifically not incorporated by reference in this prospectus.
WHERE YOU CAN FIND MORE INFORMATION
We are
subject to the information requirements of the Exchange Act and file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy any materials that we file with the SEC at the SECs Public
Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the Public Reference Room. In addition, we file those materials electronically with the SEC through the
SECs EDGAR system. The SEC maintains a website at http://www.sec.gov that contains the reports, proxy and information statements and other information regarding issuers that file electronically with the SEC. You also can access electronic
versions of our reports, proxy statements and other information at our Investor Relations website located at www.successfactors.com/investor. We make available free of charge on our website those reports filed or furnished pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, as soon as reasonably practicable after we electronically file them with or furnish them to the SEC. Information contained on our web site is not part of this prospectus
or our other filings with the SEC.
We have filed with the SEC a registration statement on Form S-3 under the Securities Act
with respect to the common stock offered with this prospectus. This prospectus does not contain all of the information in the registration statement, parts of which we have omitted, as allowed under the rules and regulations of the SEC. You should
refer to the registration statement for further information with respect to us and the common stock. Copies of the registration statement, including exhibits, may be inspected without charge at the SECs Public Reference Room and on the
SECs website at the addresses set forth above.
8
No dealer, salesperson or other person is authorized to give any information or to represent
anything not contained in this prospectus. You must not rely on any unauthorized information or
representations. This prospectus is an offer to sell only the shares offered hereby, but only under
circumstances and in jurisdictions where it is lawful to do so. The information contained in this
prospectus is current only as of its date.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14.
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Other Expenses of Issuance and Distribution
.
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The following table sets forth the various expenses payable by the Registrant in connection with the sale and distribution of the common stock being registered hereby. All expenses of the offering will be
paid by the Registrant. All amounts are estimated except the SEC registration fee.
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SEC registration fee
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$
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11,514
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Printing fees
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10,000
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Accounting fees and expenses
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45,000
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Legal fees and expenses
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20,000
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Transfer agent fees
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5,000
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Miscellaneous fees and expenses
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7,000
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Total
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$
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98,154
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ITEM 15.
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Indemnification of Directors and Officers
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Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporations board of directors to grant, indemnity to directors and officers under certain circumstances
and subject to certain limitations. The terms of Section 145 of the Delaware General Corporation Law are sufficiently broad to permit indemnification under certain circumstances for liabilities, including reimbursement of expenses incurred,
arising under the Securities Act of 1933, as amended (the Securities Act).
As permitted by the Delaware General
Corporation Law, the Registrants certificate of incorporation includes a provision that eliminates the personal liability of a director for monetary damages resulting from breach of his fiduciary duty as a director, except for liability:
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for any breach of the directors duty of loyalty to Registrant or its stockholders;
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for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;
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under Section 174 of the Delaware General Corporation Law regarding unlawful dividends and stock purchases; or
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for any transaction from which the director derived an improper personal benefit.
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As permitted by the Delaware General Corporation Law, the Registrants bylaws provide that:
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the Registrant is required to indemnify its directors and officers to the fullest extent permitted by the Delaware General Corporation Law, subject to
limited exceptions where indemnification is not permitted by applicable law;
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the Registrant is required to advance expenses, as incurred, to its directors and officers in connection with a legal proceeding to the fullest extent
permitted by the Delaware General Corporation Law, subject to certain very limited exceptions; and
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the rights conferred in the bylaws are not exclusive.
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In addition, the Registrant has entered into indemnity agreements with each of its current directors and officers. These agreements provide for the indemnification of the Registrants officers and
directors for all expenses and liabilities incurred in connection with any action or proceeding brought against them by reason of the fact that they are or were agents of the Registrant.
The Registrant has obtained directors and officers insurance to cover its directors, officers and some of its employees for
certain liabilities.
Reference is made to the following documents regarding relevant indemnification provisions described
above and elsewhere herein:
II-1
Document
1.
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Restated Certificate of Incorporation (see Exhibit 4.1).
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2.
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Amended and Restated Bylaws (see Exhibit 4.2).
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3.
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Form of Indemnity Agreement entered into between the Registrant and each of its directors and executive officers (incorporated by reference to Exhibit 10.1 to the
Registrants registration statement on Form S-1 (File No. 333-144758) filed with the Commission on July 20, 2007.
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At present, there is no pending litigation or proceeding involving a director or executive officer of the Registrant as to which indemnification is being sought, nor is the Registrant aware of any
threatened litigation that may result in claims for indemnification by any executive officer or director.
The following exhibits are filed with or incorporated by reference into this registration statement:
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Exhibit
Number
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Exhibit Description
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Incorporated by Reference
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Filed
Herewith
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Form
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File No.
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Exhibit
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Filing Date
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2.1
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Amended and Restated Agreement and Plan of Merger, dated as of June 28, 2011, by and among SuccessFactors, Inc., two wholly owned subsidiaries of SuccessFactors, Inc., Plateau
Systems Holdings, Inc., Plateau Systems, Ltd. and the Stockholders Agent
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8-K
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001-33755
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2.1
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6/30/11
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4.1
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Restated Certificate of Incorporation
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10-K
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001-33755
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3.1
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3/5/08
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4.2
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Amended and Restated Bylaws
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8-K
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001-33755
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3.2
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3/28/11
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4.3
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Specimen Common Stock certificate
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S-1
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333-144758
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4.1
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10/31/07
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5.1
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Opinion of Fenwick & West LLP regarding the legality of the securities being registered
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X
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23.1
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Consent of Fenwick & West LLP (included in Exhibit 5.1)
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X
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23.2
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Consent of KPMG LLP, Independent Registered Public Accounting Firm
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X
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23.3
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Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm
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X
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23.4
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Consent of Ernst & Young LLP, Independent Auditors
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X
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24.1
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Power of Attorney (See Page II-5)
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X
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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:
II-2
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act
of 1933;
(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) if, in the aggregate, the changes in volume and price represent no more than 20 percent 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), (1)(ii) and (1)(iii) above do
not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, 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.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to
any purchaser:
(i) Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of
the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to
Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the
date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person
that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at
that time shall be deemed to be the initial
bona fide
offering thereof.
Provided, however,
that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated
or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that
was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to the registration
statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
II-3
(ii) Any free writing prospectus relating to the offering prepared by
or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about
the undersigned Registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act
of 1933, each filing of the registrants annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plans annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) 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.
(7) Insofar as indemnification
for liabilities arising under the Securities Act of 1933 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 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 Act and will be governed by the final adjudication of such issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Mateo, State of California, on this
29
th
day of June, 2011.
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SUCCESSFACTORS, INC.
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By:
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/s/ Lars Dalgaard
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Lars Dalgaard
Chief
Executive Officer and a Director
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KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby
constitutes and appoints Lars Dalgaard, Bruce C. Felt, Jr. and Hillary K. Smith, and each of them, as his or her true and lawful attorney-in-fact and agent with full power of substitution, for him or her in any and all capacities, to sign any
and all 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 attorney-in-fact and agent 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 for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his or her 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.
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Name
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Title
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Date
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/s/ Lars Dalgaard
|
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Chief Executive Officer and Director
|
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June 29, 2011
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Lars Dalgaard
|
|
(Principal Executive Officer)
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/s/ Bruce C. Felt, Jr.
|
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Chief Financial Officer
|
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June 29, 2011
|
Bruce C. Felt, Jr.
|
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(Principal Accounting and Financial Officer)
|
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/s/ Douglas J. Burgum
|
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Chairperson of the Board of Directors
|
|
June 29, 2011
|
Douglas J. Burgum
|
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/s/ Eric C.W. Dunn
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Director
|
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June 29, 2011
|
Eric C.W. Dunn
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/s/ William H. Harris, Jr.
|
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Director
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June 29, 2011
|
William H. Harris, Jr.
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/s/ William E. McGlashan, Jr.
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Director
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|
June 29, 2011
|
William E. McGlashan, Jr.
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/s/ Elizabeth A. Nelson
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Director
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June 29, 2011
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Elizabeth A. Nelson
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II-5
EXHIBIT INDEX
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Exhibit
Number
|
|
Exhibit Description
|
|
Incorporated by Reference
|
|
Filed
Herewith
|
|
|
Form
|
|
File No.
|
|
Exhibit
|
|
Filing Date
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|
|
|
|
|
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|
|
2.1
|
|
Amended and Restated Agreement and Plan of Merger, dated as of June 28, 2011, by and among SuccessFactors, Inc., two wholly owned subsidiaries of SucessFactors, Inc., Plateau
Systems Holdings, Inc., Plateau Systems, Ltd. and the Stockholders Agent
|
|
8-K
|
|
001-33755
|
|
2.1
|
|
6/30/11
|
|
|
|
|
|
|
|
|
|
4.1
|
|
Restated Certificate of Incorporation
|
|
10-K
|
|
001-33755
|
|
3.1
|
|
3/5/08
|
|
|
|
|
|
|
|
|
|
4.2
|
|
Amended and Restated Bylaws
|
|
8-K
|
|
001-33755
|
|
3.2
|
|
3/28/11
|
|
|
|
|
|
|
|
|
|
4.3
|
|
Specimen Common Stock certificate
|
|
S-1
|
|
333-144758
|
|
4.1
|
|
10/31/07
|
|
|
|
|
|
|
|
|
|
5.1
|
|
Opinion of Fenwick & West LLP regarding the legality of the securities being registered
|
|
|
|
|
|
|
|
|
|
X
|
|
|
|
|
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|
23.1
|
|
Consent of Fenwick & West LLP (included in Exhibit 5.1)
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|
X
|
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|
|
|
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|
23.2
|
|
Consent of KPMG LLP, Independent Registered Public Accounting Firm
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|
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X
|
|
|
|
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23.3
|
|
Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm
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X
|
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|
|
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23.4
|
|
Consent of Ernst & Young LLP, Independent Auditors
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|
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X
|
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24.1
|
|
Power of Attorney (See Page II-5)
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X
|
II-6
Successfactors, Inc. (MM) (NASDAQ:SFSF)
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