As filed with the Securities and
Exchange Commission on March 31, 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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INTERACTIVE INTELLIGENCE, INC.
(Exact name of registrant as specified in its charter)
INDIANA 35-1933097
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
8909 PURDUE ROAD, SUITE 300 46268
INDIANAPOLIS, INDIANA (Zip Code)
(Address of Principal Executive Offices)
INTERACTIVE INTELLIGENCE, INC. 401(K) SAVINGS PLAN
(Full title of the plan)
MICHAEL J. TAVLIN
CHIEF FINANCIAL OFFICER
8909 PURDUE ROAD
SUITE 300
INDIANAPOLIS, INDIANA 46268
(Name and address of agent for service)
(317) 872-3000
(Telephone number, including area code, of agent for service)
COPY TO:
JAMES A. ASCHLEMAN
BAKER & DANIELS
300 NORTH MERIDIAN STREET, SUITE 2700
INDIANAPOLIS, INDIANA 46204-1782
(317) 237-0300
CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED (1) OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION FEE
SHARE (2) PRICE (2)
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Common Stock, 500,000 $46.25 $23,125,000 $6,105
$0.01 par value
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(1) Pursuant to Rule 416(a) under the Securities Act of 1933 (the "Securities
Act"), this Registration Statement also registers additional shares of
Common Stock as may be offered or issued to prevent dilution resulting from
stock splits, stock dividends and similar transactions. In addition,
pursuant to Rule 416(c) under the Securities Act, this Registration
Statement also covers an indeterminate amount of plan interests to be
offered or sold in the employee benefit plan described herein. Pursuant
to Rule 457(h)(2) under the Securities Act, no separate fee is required
to register such plan interests.
(2) Estimated solely for purposes of calculating the registration fee and
computed in accordance with Rule 457(c) and (h) under the Securities Act
using the average of the high and low sale prices of the Common Stock as
reported by the Nasdaq National Market System on March 29, 2000, which was
$46.25 per share.
PART I
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
*Information required by Part I of Form S-8 to be contained in the Section
10(a) Prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by Interactive Intelligence, Inc.
(the "Registrant") with the Securities and Exchange Commission are incorporated
by reference in this Registration Statement:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999;
(2) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed with the
Securities and Exchange Commission on September 17, 1999, including
any amendment or report filed for the purpose of updating such
description.
In addition, all documents subsequently filed by the Registrant or the
Interactive Intelligence, Inc. 401(k) Savings Plan (the "Plan") pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities offered hereby then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from their respective dates of filing.
The Registrant will promptly provide without charge to each person to whom
a prospectus is delivered a copy of any or all information that has been
incorporated herein by reference (not including exhibits to the information that
is incorporated by reference unless such exhibits are specifically incorporated
by reference into such information) upon the written or oral request of such
person directed to the Secretary of the Registrant at its principal offices,
8909 Purdue Road, Suite 300, Indianapolis, Indiana 46268, telephone (317)
872-3000.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
The Indiana Business Corporation Law provides that a corporation, unless
limited by its articles of incorporation, is required to indemnify its directors
and officers against reasonable expenses incurred in the successful defense of
any proceeding arising out of their serving as a director or officer of the
corporation.
As permitted by the Indiana Business Corporation Law, the Registrant's
Restated Articles of Incorporation provide for indemnification of directors,
officers, employees and agents of the Registrant against any and all liability
and reasonable expense that may be incurred by them, arising out of any claim or
action, civil, criminal, administrative or investigative, in which they may
become involved by reason of being or having been a director, officer, employee
or agent. To be entitled to indemnification, those persons must have been wholly
successful in the claim or action or the board of directors must have
determined, based upon a written finding of legal counsel or another independent
referee, or a court of competent jurisdiction must have determined, that such
persons acted in good faith in what they reasonably believed to be the best
interest of the Registrant (or at least not opposed to its best interests) and,
in addition, in any criminal action, had reasonable cause to believe their
conduct was lawful (or had no reasonable cause to believe that their conduct was
unlawful). The Restated Articles of Incorporation authorize the Registrant to
advance funds for expenses to an indemnified person, but only upon receipt of an
undertaking that he or she will repay the same if it is ultimately determined
that such party is not entitled to indemnification.
The Registrant also has an Indemnity Agreement with each of its directors
and executive officers. The standard for indemnification under the Indemnity
Agreement is substantially the same as under the Registrant's Restated Articles
of Incorporation. The Indemnity Agreement, however, provides for mandatory
advancement of expenses if the indemnitee provides the Registrant with a written
affirmation of the indemnitee's good faith belief that he or she is entitled to
indemnification and a written undertaking to repay the advance if it is
ultimately determined that the indemnitee is not entitled to indemnification.
The undertaking need not be secured. The Indemnity Agreement also provides for
mandatory advancement of expenses in derivative actions on behalf of the
Registrant against an indemnitee.
The rights of indemnification provided by the Restated Articles of
Incorporation and the Indemnity Agreements are not exhaustive and are in
addition to any rights to which a director or officer may otherwise be entitled
by contract or as a matter of law. Irrespective of the provisions of the
Restated Articles of Incorporation and the Indemnity Agreements, the Registrant
may, at any time and from time to time, indemnify directors, officers, employees
and other persons to the full extent permitted by the provisions of applicable
law at the time in effect, whether on account of past or future transactions.
In addition, the Registrant has a directors' and officers' liability and
company reimbursement policy that insures against certain liabilities under the
Securities Act, subject to applicable retentions.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The list of Exhibits is incorporated herein by reference to the Index
to Exhibits.
The Registrant hereby undertakes that it will submit or has submitted the
Plan and any amendment thereto to the Internal Revenue Service ("IRS") in a
timely manner and has made or will make all changes required by the IRS in
order to qualify the Plan under Section 401 of the Internal Revenue Code.
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ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act 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;
(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) and (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 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.
(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 the 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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's 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.
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.
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SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act, 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 Indianapolis, State of Indiana, on March 30, 2000.
INTERACTIVE INTELLIGENCE, INC.
By: /s/ Donald E. Brown, M.D.
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Donald E. Brown, M.D.
Chairman, President and
Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in their respective
capacities and on the respective dates indicated opposite their names. Each
person whose signature appears below hereby authorizes each of Donald E. Brown,
M.D. and John R. Gibbs, each with full power of substitution, to execute in the
name and on behalf of such person any post-effective amendment to this
Registration Statement and to file the same, with exhibits thereto, and other
documents in connection therewith, making such changes in this Registration
Statement as the registrant deems appropriate, and appoints each of Donald E.
Brown, M.D. and John R. Gibbs, each with full power of substitution,
attorney-in-fact to sign any amendment and any post-effective amendment to this
Registration Statement and to file the same, with exhibits thereto, and other
documents in connection therewith.
SIGNATURE TITLE DATE
/s/ Donald E. Brown, M.D. Chairman, President, Chief Executive March 30, 2000
---------------------------------- Officer and Director (Principal Executive
Donald E. Brown, M.D. Officer)
/s/ John R. Gibbs Executive Vice President and Director March 30, 2000
----------------------------------
John R. Gibbs
/s/ Michael J. Tavlin Chief Financial Officer (Principal March 30, 2000
---------------------------------- Financial Officer)
Michael J. Tavlin
/s/ Keith A. Midkiff Vice President of Finance and Controller March 30, 2000
---------------------------------- (Principal Accounting Officer)
Keith A. Midkiff
/s/ Robert A. Compton Director March 30, 2000
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Robert A. Compton
Director March __, 2000
---------------------------------
Jon Anton, D.Sc.
/s/ Michael P. Cullinane Director March 30, 2000
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Michael P. Cullinane
S-1
THE PLAN. Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Indianapolis, State of
Indiana on March 30, 2000.
INTERACTIVE INTELLIGENCE, INC. 401(k) SAVINGS PLAN
By: INTERACTIVE INTELLIGENCE, INC. ADMINISTRATIVE
COMMITTEE
/s/ Barbara J. Claassen
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Barbara J. Claassen, Member
/s/ John R. Gibbs
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John R. Gibbs, Member
/s/ Lynn K. Krajewski
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Lynn K. Krajewski, Member
/s/ Michael J. Tavlin
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Michael J. Tavlin, Member
/s/ Anita Quear-O'Neil
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Anita Quear-O'Neil, Member
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INDEX TO EXHIBITS
Exhibit DESCRIPTION OF EXHIBIT
NO.
4.1 Restated Articles of Incorporation of the Registrant. (The copy of this Exhibit filed as
Exhibit 3.1 to the Company's Registration Statement on Form S-1 (Registration
No. 333-79509) is incorporated herein by reference.)
4.2 By-Laws of the Registrant, as amended to date. (The copy of this Exhibit filed as
Exhibit 3.2 to the Company's Registration Statement on Form S-1 (Registration
No. 333-79509) is incorporated herein by reference.)
4.3 Interactive Intelligence, Inc. 401(k) Savings Plan.
5 Opinion of Baker & Daniels, counsel for Registrant, as to the legality of the securities
being registered.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Baker & Daniels (included in the Baker & Daniels Opinion filed as Exhibit 5).
24 Powers of Attorney (included on the Signature Page of the Registration Statement).