As filed with the Securities and Exchange Commission on December 17, 2004 | |
| Registration No. 333- |
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
KANBAY INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
Delaware | 36-4387594 |
(State or Other Jurisdiction of | (I.R.S. Employer Identification No.) |
|
|
6400 Shafer Court, Suite 100 | 60018 |
(Address of Principal Executive Offices) | (Zip Code) |
Kanbay International, Inc. 2005 Employee Stock Purchase Plan
(Full Title of the Plans)
Raymond J. Spencer
Chairman and Chief Executive Officer
Kanbay International, Inc.
6400 Shafer Court, Suite 100
Rosemont, Illinois 60018
(Name and Address of Agent for Service)
(847) 384-6100
(Telephone Number, Including Area Code, of Agent for Service)
Copy to:
Leland E. Hutchinson, Esq.
Matthew F. Bergmann, Esq.
Winston & Strawn LLP
35 West Wacker Drive
Chicago, Illinois 60601
(312) 558-5600
CALCULATION OF REGISTRATION FEE
Title of securities |
| Amount to be registered |
| Proposed maximum |
| Proposed maximum |
| Amount of registration |
|
Common stock, par value $0.001 per share: shares authorized and reserved for issuance |
| 500,000 shares(1) |
| $26.74(2) |
| $13,370,000(2) |
| $1,573.65 |
|
(1) The 500,000 shares of common stock of the Registrant covered by this Registration Statement are authorized and reserved for issuance under the Kanbay International, Inc. 2005 Employee Stock Purchase Plan.
(2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) and (c) under the 1933 Act on the basis of the average of the high and low prices reported for shares of common stock of the Registrant on the Nasdaq National Market on December 15, 2004.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Kanbay International, Inc., a Delaware corporation (the “Registrant”), shall deliver the document containing the information in Part I of this Registration Statement on Form S-8 to each participant in the Kanbay International, Inc. 2005 Employee Stock Purchase Plan as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the “1933 Act”). Such document is not being filed with or included in this Registration Statement (by incorporation by reference or otherwise) in accordance with the rules and regulations of the Securities and Exchange Commission (the “Commission”). Such document and the documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the 1933 Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the Commission are incorporated by reference in this Registration Statement:
(a) the Registrant’s Prospectus filed pursuant to Rule 424(b) under the 1933 Act relating to the Registrant’s Registration Statement on Form S-1, as amended (Registration No. 333-119986);
(b) the Registrant’s quarterly reports for the fiscal quarter ended June 30, 2004 filed with the Commission on September 3, 2004 and for the fiscal quarter ended September 30, 2004 filed with the Commission on November 10, 2004, and current reports filed with the Commission on October 27, 2004 and December 8, 2004; and
(c) the description of the Registrant’s common stock contained in its Registration Statement on Form 8-A, filed on July 15, 2004 pursuant to Section 12(g) of the Securities Exchange Act of 1934, as amended (the “1934 Act”), including any amendment or report filed for the purpose of updating such description.
All documents subsequently filed with the Commission by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act prior to the filing of a post-effective amendment, which indicates that all securities offered herein have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be part hereof from the respective dates of filing of such documents. Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes hereof or for purposes of the related prospectus to the extent that a statement contained herein or in any other subsequently filed document which is also incorporated or deemed to be incorporated 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 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
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Item 6. Indemnification of Directors and Officers.
Delaware General Corporation Law
The Registrant is incorporated under the laws of the State of Delaware. The Registrant’s certificate of incorporation and by-laws provide for the indemnification of its directors, officers, employees and agents to the fullest extent permitted under the Delaware General Corporation Law. Section 145 of the General Corporation Law of the State of Delaware provides that a corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the person’s conduct was unlawful.
In addition, the Registrant has the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that a Delaware Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
Section 102(b)(7) of the Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation a provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall not eliminate or limit the liability of a director:
• for any breach of the director’s duty of loyalty to the Registrant or its stockholders;
• for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
• for payment of dividends or stock purchases or redemptions by the corporation in violation of Section 174 of the Delaware General Corporation Law; or
• for any transaction from which the director derived an improper personal benefit.
The Registrant’s certificate of incorporation includes such a provision. As a result of this provision, the Registrant and its stockholders may be unable to obtain monetary damages from a director for certain breaches of his or her fiduciary duty to the Registrant. This provision does not, however, eliminate a director’s fiduciary responsibilities and, in appropriate circumstances, equitable remedies such as injunctive or other forms of non-monetary relief will remain available under Delaware law. The provision also does not affect a director’s responsibilities under any other laws, such as the federal securities laws.
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Indemnification Agreements
The Registrant entered into indemnification agreements with each of its directors and officers and certain key employees that may be broader than the specific indemnification provisions contained in the Delaware General Corporation Law, as amended from time to time. These indemnification agreements may require it, among other things, to indemnify its directors and officers and certain key employees against liabilities that may arise by reason of their status or service. These indemnification agreements may also require it to advance all expenses incurred by the directors or officers or certain key employees in investigating or defending any such action, suit or proceeding. However, an individual will not receive indemnification for judgments, settlements or expenses if he or she is found liable to the company (except to the extent the court determines he or she is fairly and reasonably entitled to indemnity for expenses) for settlements not approved by the company or for settlements and expenses if the settlement is not approved by the court.
Directors’ and Officers’ Liability Insurance
The Registrant maintains directors’ and officers’ liability insurance policies, which insure against liabilities that directors or officers may incur in such capacities. These insurance policies, together with the indemnification agreements, may be sufficiently broad to permit indemnification of our directors and officers for liabilities, including reimbursement of expenses incurred, arising under the 1933 Act or otherwise.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following documents are filed as exhibits to this Registration Statement:
Exhibit No. |
| Description |
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|
4.1 |
| Specimen Common Stock Certificate (incorporated by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form S-1 (Registration No. 333-113495)). |
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|
5.1 |
| Opinion of Winston & Strawn LLP. |
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23.1 |
| Consent of Ernst & Young LLP. |
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|
23.2 |
| Consent of Ernst & Young LLP. |
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23.3 |
| Consent of Winston & Strawn LLP (included in Exhibit 5.1). |
|
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24.1 |
| Powers of attorney (included on the signature page of this Registration Statement). |
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
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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% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in this 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)(1)(i) and (a)(1)(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 Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are incorporated by reference in the registration statement.
(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.
(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 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 in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the 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 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 1933 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, 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 Rosemont, the State of Illinois, on December 17, 2004.
| KANBAY INTERNATIONAL, INC. | ||||
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| By: | /s/ William F. Weissman |
| ||
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| Name: | William F. Weissman | ||
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| Title: | Vice President and Chief Financial Officer | ||
POWER OF ATTORNEY AND SIGNATURES
KNOW ALL PERSONS BY THESE PRESENTS THAT each person whose signature appears below hereby constitutes and appoints Raymond J. Spencer and William F. Weissman as his true and lawful attorneys-in-fact and agents, 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 the registration statement on Form S-8 under the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying, and confirming all that said attorneys-in-fact and agents, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Signature |
| Title |
| Date |
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/s/ Raymond J. Spencer |
| Chairman of the Board and Chief |
| December 17, 2004 |
Raymond J. Spencer |
| Executive Officer (principal executive |
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/s/ William F. Weissman |
| Vice President and Chief Financial Officer |
| December 17, 2004 |
William F. Weissman |
| (principal accounting and financial |
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| officer) |
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/s/ Donald R. Caldwell |
| Director |
| December 17, 2004 |
Donald R. Caldwell |
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/s/ Cyprian D’Souza |
| Director |
| December 17, 2004 |
Cyprian D’Souza |
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/s/ Mark L. Gordon |
| Director |
| December 17, 2004 |
Mark L. Gordon |
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| Director |
| December 17, 2004 |
Kenneth M. Harvey |
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/s/ B. Douglas Morriss |
| Director |
| December 17, 2004 |
B. Douglas Morriss |
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/s/ Michael E. Mikolajczyk |
| Director |
| December 17, 2004 |
Michael E. Mikolajczyk |
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INDEX TO EXHIBITS
Exhibit No. |
| Description |
|
|
|
4.1 |
| Specimen Common Stock Certificate (incorporated by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form S-1 (Registration No. 333-113495)). |
|
|
|
5.1 |
| Opinion of Winston & Strawn LLP. |
|
|
|
23.1 |
| Consent of Ernst & Young LLP. |
|
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23.2 |
| Consent of Ernst & Young LLP. |
|
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23.3 |
| Consent of Winston & Strawn LLP (included in Exhibit 5.1). |
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24.1 |
| Powers of attorney (included on the signature page of this Registration Statement). |
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