<PAGE> 1
As filed with the Securities and Exchange Commission on April 6, 2000
Registration No. 333-________
================================================================================
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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ELOQUENT, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 94-3221868
(State of Incorporation) (I.R.S. Employer Identification No.)
-------------------
2000 ALAMEDA DE LAS PULGAS, SUITE 100
SAN MATEO, CA 94403
(650) 294-6500
(Address of principal executive offices)
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1999 EMPLOYEE STOCK PURCHASE PLAN
1999 EQUITY INCENTIVE PLAN
1997 EQUITY INCENTIVE PLAN
EQUITY INCENTIVE PLAN
(Full title of the plans)
ABRAHAM KLEINFELD
C/O ELOQUENT, INC.
2000 ALAMEDA DE LAS PULGAS, SUITE 100
SAN MATEO, CA 94403
(65) 294-6500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-------------------
Copies to:
KENNETH L. GUERNSEY, ESQ.
JODIE M. BOURDET, ESQ.
COOLEY GODWARD LLP
ONE MARITIME PLAZA, 20TH FLOOR
SAN FRANCISCO, CA 94111
(415) 693-2000
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<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
======================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED SHARE (1) PRICE (1) REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Shares of Common 117,217 $ 0.08 -- $0.17(1)(a) $ 19,476.89 $ 5.10
Stock, par value
$.001 per share,
issuable pursuant to
outstanding options
under the Equity
Incentive Plan
======================================================================================================
Shares of Common 3,974,817 $ 0.17 -- $9.00(1)(a) $13,795,529.13 $ 3,614.43
Stock, par value
$.001 per share,
issuable pursuant to
outstanding options
under the 1997 Equity
Incentive Plan
======================================================================================================
Shares of Common 105,000 $16.00 -- $37.62(1)(a) $ 1,784,980 $ 471.23
Stock, par value
$.001 per share,
issuable pursuant to
outstanding options
under the 1999 Equity
Incentive Plan
======================================================================================================
Shares of Common 478,003 $19.5625(1)(b) $ 9,350,933.60 $ 2,468.65
Stock, par value
$.001 per share,
reserved for future
grant under the 1999
Equity Incentive Plan
======================================================================================================
Shares of Common 700,000 $19.5625(1)(b) $13,693,750 $ 3,615.15
Stock, par value
$.001 per share,
reserved for future
issuance under the
1999 Employee Stock
Purchase Plan
======================================================================================================
Totals 5,375,037 $0.08 -- $37.62 $38,644,669.62 $10,202.19
======================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee. The offering price per share and aggregate offering price are
based upon (a) the weighted average exercise price, for shares subject to
options previously granted under the Eloquent, Inc. ("Registrant" or "Company")
1999 Employee Stock Purchase Plan, 1999 Equity Incentive Plan, 1997 Equity
Incentive Plan, and Equity Incentive Plan (pursuant to Rule 457(h) under the
Securities Act of 1933, as amended (the "Act")) and (b) the average of the high
and low prices of the Company's Common Stock as reported on the Nasdaq National
Market on March 31, 2000 for shares available for grant pursuant to the 1999
Employee Stock Purchase Plan, 1999 Equity Incentive Plan, 1997 Equity Incentive
Plan, and Equity Incentive Plan (pursuant to Rule 457(c) under the Act).
2.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Eloquent, Inc. (the "Company") with the
Securities and Exchange Commission are incorporated by reference into this
Registration Statement:
(a) The Company's prospectus filed pursuant to Rule 424(b) under the
Securities Act of 1933, as amended (the "Act"), which contains audited financial
statements for the Company's latest fiscal year for which such statements have
been filed.
(b) All other reports filed pursuant to Sections 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the prospectus referred
to in (a) above.
(c) The description of the Company's Common Stock that is contained in a
registration statement filed under the Exchange Act, including any amendment or
report filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing
of a post-effective amendment that indicates that all securities offered have
been sold or that deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
DESCRIPTION OF SECURITIES
Not applicable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company has entered into indemnity agreements with each of its
directors and executive officers. The form of indemnity agreement provides that
the Company will indemnify against any and all expenses of the director or
executive officer who incurred expenses because of his or her status as a
director or executive officer, to the fullest extent permitted by the Company's
bylaws.
The Company's certificate of incorporation and bylaws contain provisions
relating to the limitation of liability and indemnification of directors and
officers. The certificate of incorporation provides that directors will not be
personally liable to the Company or its stockholders for monetary damages for
any breach of fiduciary duty as a director, except for liability: (1) for any
breach of the directors' duty of loyalty to us or the Company's stockholders;
(2) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; (3) in respect of certain unlawful
payments of dividends or unlawful stock repurchases or redemptions as provided
in Section 174 of the Delaware General Corporation Law; or (4) for any
transaction from which the director derives any improper personal benefit. The
certificate of incorporation also provides that if the Delaware General
Corporation Law is amended after the approval by the Company's stockholders of
the certificate of incorporation to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of the directors will be eliminated or limited to the fullest extent permitted
by the Delaware law. In addition, as permitted by Section 145 of the Delaware
General Corporation Law, the Company's bylaws provide that the Company will
indemnify its directors and executive officers and may indemnify other officers,
employees and other agents of the Company to the fullest extent not prohibited
by Delaware law. These provisions do not affect a director's responsibilities
under any other laws, such as the federal securities laws or state or federal
environmental laws. The Company has purchased a directors' and officers'
liability insurance policy providing coverage up to specified
3.
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amounts for losses incurred by the Company, its directors or officers in
connection with specified claims against them, including specified claims under
state and federal securities laws.
EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
CONSULTANTS AND ADVISORS
Not applicable.
4.
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EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
<S> <C>
5.1 Opinion of Cooley Godward LLP
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement
24.1 Power of Attorney is contained on the signature pages
99.1 1999 Equity Incentive Plan and forms of grant thereunder(1)
99.2 1997 Equity Incentive Plan and forms of grant thereunder(2)
99.3 Equity Incentive Plan and form of grant thereunder(2)
99.4 1999 Employee Stock Purchase Plan(3)
</TABLE>
(1) Filed as an exhibit to the Form S-1 Registration Statement (Registration
No. 333-89537) on October 22, 1999 and incorporated herein by reference. Form of
offering thereunder filed as an exhibit to the Form S-1 Registration Statement
(Registration No. 333-89537) on October 22, 1999 and incorporated herein by
reference.
(2) Filed as an exhibit to Amendment No. 1 to the Form S-1 Registration
Statement (Registration No. 333-89537) on December 2, 1999 and incorporated
herein by reference. Form of offering thereunder filed as an exhibit to the Form
S-1 Registration Statement (Registration No. 333-89537) on October 22, 1999, and
incorporated herein by reference.
(3) Filed as an exhibit to Amendment No. 3 to the Form S-1 Registration
Statement (Registration No. 333-89537) on February 11, 2000 and incorporated
herein by reference. Form of offering thereunder filed as an exhibit to
Amendment No. 3 to the Form S-1 Registration Statement (Registration No.
333-89537) on February 11, 2000 and incorporated herein by reference.
UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) (Section 230.424(b) of this
chapter) if, in the aggregate, the changes in volume and price represent no more
than a 20%
5.
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change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the issuer pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by
reference herein.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to section 15(d) of the Exchange
Act) that is incorporated by reference in the Registration Statement shall
be deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such
issue.
6.
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Mateo, County of San Mateo, State of
California, on March 31, 2000.
ELOQUENT, INC.
By: /s/ R. John Curson
----------------------------------
R. John Curson
Chief Financial Officer,
Treasurer and Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Abraham Kleinfeld and R. John Curson, and
each or any one of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their or his substitutes or substitute, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Abraham Kleinfeld Chief Executive Officer and March 31, 2000
- ----------------------------- President (Principal
ABRAHAM KLEINFELD Executive Officer)
/s/ Clifford Reid Chairman of the Board March 31, 2000
- -----------------------------
CLIFFORD A. REID
/s/ R. John Curson Chief Financial Officer, March 31, 2000
- ----------------------------- Treasurer and Secretary
R. JOHN CURSON (Principal Financial and
Accounting Officer)
</TABLE>
7.
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<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Anthony Brenner Director March 24, 2000
- -----------------------------
ANTHONY P. BRENNER
/s/ David F. Millet Director March 27, 2000
- -----------------------------
DAVID F. MILLET
/s/ Kathryn C. Gould Director March 31, 2000
- -----------------------------
KATHRYN C. GOULD
/s/ Terry L. Opdendyk Director March 31, 2000
- -----------------------------
TERRY L. OPDENDYK
/s/ Mark C. Thompson Director March 24, 2000
- -----------------------------
MARK C. THOMPSON
/s/ Michael E. Herman Director March 29, 2000
- -----------------------------
MICHAEL E. HERMAN
</TABLE>
8.
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<TABLE>
<CAPTION>
EXHIBITS
EXHIBIT SEQUENTIAL PAGE
NUMBER NUMBERS
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<S> <C>
5.1 Opinion of Cooley Godward LLP
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Cooley Godward LLP is contained in
Exhibit 5.1 to this Registration Statement
24.1 Power of Attorney is contained on the signature
pages
99.1 1999 Equity Incentive Plan and forms of grant
thereunder(1) --
99.2 1997 Equity Incentive Plan and forms of grant
thereunder(2) --
99.3 Equity Incentive Plan and form of grant
thereunder(2) --
99.4 1999 Employee Stock Purchase Plan(3) --
</TABLE>
(1) Filed as an exhibit to the Form S-1 Registration Statement (Registration
No. 333-89537) on October 22, 1999 and incorporated herein by reference. Form of
offering thereunder filed as an exhibit to the Form S-1 Registration Statement
(Registration No. 333-89537) on October 22, 1999 and incorporated herein by
reference.
(2) Filed as an exhibit to Amendment No. 1 to the Form S-1 Registration
Statement (Registration No. 333-89537) on December 2, 1999 and incorporated
herein by reference. Form of offering thereunder filed as an exhibit to the Form
S-1 Registration Statement (Registration No. 333-89537) on October 22, 1999, and
incorporated herein by reference.
(3) Filed as an exhibit to Amendment No. 3 to the Form S-1 Registration
Statement (Registration No. 333-89537) on February 11, 2000 and incorporated
herein by reference. Form of offering thereunder filed as an exhibit to
Amendment No. 3 to the Form S-1 Registration Statement (Registration No.
333-89537) on February 11, 2000 and incorporated herein by reference.
9.
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Exhibit 5.1
April 4, 2000
Eloquent, Inc.
2000 Alameda de las Pulgas, Suite 100
San Mateo, CA 94403
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Eloquent, Inc. (the "Company") of a Registration Statement on
Form S-8 (the "Registration Statement") with the Securities and Exchange
Commission covering the offering of up to 5,375,037 shares of the Company's
Common Stock, $.001 par value per share, (the "Shares") pursuant to its 1999
Employee Stock Purchase Plan, 1999 Equity Incentive Plan, 1997 Equity Incentive
Plan and Equity Incentive Plan (collectively, the "Plans").
In connection with this opinion, we have examined the Registration Statement and
related Prospectus, your Certificate of Incorporation and By-laws, as amended,
and such other documents, records, certificates, memoranda and other instruments
as we deem necessary as a basis for this opinion. We have assumed the
genuineness and authenticity of all documents submitted to us as originals, the
conformity to originals of all documents submitted to us as copies thereof, and
the due execution and delivery of all documents where due execution and delivery
are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Plans, the
Registration Statement and related Prospectuses, will be validly issued, fully
paid, and nonassessable (except as to shares issued pursuant to certain deferred
payment arrangements, which will be fully paid and nonassessable when such
deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
COOLEY GODWARD LLP
By: /s/ Jodie M. Bourdet
----------------------------------
Jodie M. Bourdet
10.
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Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Eloquent, Inc. of our report dated January 18, 2000
relating to the financial statements, which appear in the prospectus filed
pursuant to Rule 424(b) on February 17, 2000 (No. 333-89537).
/s/ PricewaterhouseCoopers LLP
San Jose, California
March 30, 2000
11.
