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As filed with the Securities and Exchange Commission on September 3, 1998
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
Form S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ECLIPSYS CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 06-0632092
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
777 EAST ATLANTIC AVENUE, SUITE 200, DELRAY BEACH, FLORIDA 33483
(Address of Principal Executive Offices) (Zip Code)
1996 STOCK PLAN
1998 STOCK INCENTIVE PLAN
AMENDED AND RESTATED 1998 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plans)
HARVEY J. WILSON
PRESIDENT, CHIEF EXECUTIVE OFFICER AND CHAIRMAN OF THE BOARD
ECLIPSYS CORPORATION
777 EAST ATLANTIC AVENUE
SUITE 200
DELRAY BEACH, FLORIDA 33483
(Name and address of agent for service)
(561) 243-1440
(Telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Number of Proposed maximum Proposed maximum Amount of
Title of securities Shares to offering price aggregate offering registration
to be registered be Registered per share price fee
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock $.01 4,333,333 $ 13.81 (1) $59,843,329 $ 17,654
par value
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee,
and based upon the average of the high and low sale prices of the
Registrant's Common Stock on the Nasdaq National Market on August 31,
1998 in accordance with Rules 457(c) and 457(h) of the Securities Act
of 1933, as amended.
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or
given to participants in the 1996 Stock Plan, 1998 Stock Incentive Plan and the
Amended and Restated 1998 Employee Stock Purchase Plan of Eclipsys Corporation,
a Delaware corporation (the "Registrant"), pursuant to Rule 428(b)(1) under the
Securities Act of 1933, as amended (the "Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant is subject to the informational and reporting
requirements of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and
Exchange Commission. The following documents, which are on file with the
Securities and Exchange Commission, are incorporated in this Registration
Statement by reference:
(a) The Registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Exchange Act or the latest prospectus filed
pursuant to Rule 424(b) under the Securities Act, that contains audited
financial statements for the Registrant's latest fiscal year for which such
statements have been filed.
(b) All other reports filed pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by the
document referred to in (a) above.
(c) The description of the common stock of the Registrant,
$.01 par value per share (the "Common Stock"), which 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 documents subsequently filed by the Registrant 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 shares offered hereby have
been sold or which deregisters all shares then remaining unsold, shall be
deemed to be incorporated in this Registration Statement by reference and to be
a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for the purposes of this
Registration Statement to the extent a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein 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 Registration Statement.
Item 4. Description of Securities.
Not applicable.
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Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
provides that a corporation has the power to indemnify a director, officer,
employee or agent of the corporation and certain other persons serving at the
request of the corporation in related capacities against amounts paid and
expenses incurred in connection with an action or proceeding to which he is or
is threatened to be made a party by reason of such position, if such person
shall have acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation, and, in any criminal
proceeding, if such person had no reasonable cause to believe his conduct was
unlawful; provided that, in the case of actions brought by or in the right of
the corporation, no indemnification shall be made with respect to any matter as
to which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the adjudicating court determines that such
indemnification is proper under the circumstances.
Article EIGHTH of the Registrant's Third Amended and Restated
Certificate of Incorporation (the "Certificate of Incorporation") provides that
no director of the Registrant shall be personally liable to the Registrant or
its stockholders for monetary damages for any breach of fiduciary duty as a
director, except to the extent that the Delaware General Corporation Law
prohibits the elimination or limitation of liability of directors for breaches
of fiduciary duty.
Article NINTH of the Certificate of Incorporation provides that a
director or officer of the Registrant (a) shall be indemnified by the
Registrant against all expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement incurred in connection with any litigation or
other legal proceeding (other than an action by or in the right of the
Registrant) brought, or threatened to be brought, against him by virtue of his
position as, or agreement to become, a director or officer of the Registrant or
by virtue of his serving, or agreeing to serve, at the request of the
Registrant, as a director, officer, or trustee of, or in a similar capacity
with, a corporation, trust or other enterprise, if he acted in good faith and
in a manner he reasonably believed to be in, or not opposed to, the best
interests of the Registrant, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful and (b)
shall be indemnified by the Registrant against all expenses (including
attorneys' fees) and amounts paid in settlement incurred in connection with any
action by or in the right of the Registrant brought, or threatened to be
brought, against him by virtue of his position as, or agreement to become, a
director or officer of the Registrant or by virtue of his serving, or agreeing
to serve, at the request of the Registrant, as a director, officer, or trustee
of, or in a similar capacity with, a corporation, trust or other enterprise, if
he acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the Registrant, except that no
indemnification shall be made with respect to any matter as to which such
person shall have been adjudged to be liable to the Registrant, unless a court
determines that, despite such adjudication but in view of all of the
circumstances, he is entitled to indemnification of such expenses.
Notwithstanding the foregoing, to the extent that a director or officer has
been successful, on the merits or otherwise, including, without limitation, the
dismissal of an action without prejudice, he is required to be indemnified by
the Registrant against all expenses
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(including attorneys' fees) incurred in connection therewith. Expenses shall be
advanced to a director or officer at his request, provided that he undertakes
to repay the amount advanced if it is ultimately determined that he is not
entitled to indemnification for such expenses.
The Registrant is required to provide the indemnification described
herein unless the officer or director has not met the applicable standard of
conduct required for indemnification. Whether the applicable standard of
conduct has been met shall be determined in each instance by (a) a majority
vote of the directors of the Registrant consisting of persons who are not at
that time parties to the action, suit or proceeding in question ("disinterested
directors"), whether or not a quorum, (b) a majority vote of a committee of
disinterested directors designated by majority vote of disinterested directors,
whether or not a quorum, (c) a majority vote of a quorum of the outstanding
shares of stock of all classes entitled to vote for directors, voting as a
single class, which quorum shall consist of stockholders who are not at that
time parties to the action, suit or proceeding in question, (d) independent
legal counsel (who may, to the extent permitted by law, be regular legal
counsel to the Registrant), or (e) a court of competent jurisdiction. In the
event of a determination that the director or officer did not meet the
applicable standard of conduct required for indemnification, or if the
Registrant fails to make a disposition within 60 days after written request for
indemnification or advancement of expenses to the Registrant is made by such
person, such person is permitted to petition the court to make an independent
determination as to whether such person is entitled to indemnification. As a
condition precedent to the right of indemnification, the director or officer
must give the Registrant notice of the action for which indemnity is sought and
the Registrant has the right to participate in such action or assume the
defense thereof.
Article NINTH of the Certificate of Incorporation further provides that
the indemnification provided therein is not exclusive, and provides that in the
event that the Delaware General Corporation Law is amended to expand the
indemnification permitted to directors or officers, the Registrant must
indemnify those persons to the fullest extent permitted by such law as so
amended.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibit Index immediately preceding the exhibits is attached hereto
and incorporated herein by reference.
Item 9. Undertakings.
1. The 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 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.
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(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 therein, 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 therein, 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 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, 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 Delray Beach, Florida on the 3rd day of September, 1998.
ECLIPSYS CORPORATION
By: /s/ HARVEY J. WILSON
---------------------------------
Harvey J. Wilson
Chairman of the Board, President
and Chief Executive Officer
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POWER OF ATTORNEY
We, the undersigned officers and directors of Eclipsys Corporation,
hereby severally constitute Harvey J. Wilson and Robert J. Vanaria, and each of
them singly, our true and lawful attorneys with full power to them, and each of
them singly, to sign for us and in our names in the capacities indicated below,
the Registration Statement on Form S-8 filed herewith and any and all
subsequent amendments to said Registration Statement, and generally to do all
such things in our names and behalf in our capacities as officers and directors
to enable Eclipsys Corporation to comply with all requirements of the
Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by said attorneys, or any of them, to said
Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
<TABLE>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Harvey J. Wilson Chief Executive Officer and September 3, 1998
- ----------------------- President (Principal
Harvey J. Wilson Executive Officer)
/s/ Robert J. Vanaria Senior Vice President, September 3, 1998
- ----------------------- Administration and Chief
Robert J. Vanaria Financial Officer (Principal
Financial and Accounting Officer)
/s/ Steven A. Denning Director September 3, 1998
- -----------------------
Steven A. Denning
/s/ G. Fred DiBona Director September 3, 1998
- -----------------------
G. Fred DiBona
/s/ Eugene Fife Director September 3, 1998
- -----------------------
Eugene Fife
/s/ W. E. Ford Director September 3, 1998
- -----------------------
William E. Ford
/s/ Jay B. Pieper Director August 31, 1998
- -----------------------
Jay B. Pieper
/s/ Richard D. Severns Director September 3, 1998
- -----------------------
Richard D. Severns
</TABLE>
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EXHIBIT INDEX
<TABLE>
Exhibit
Number Description
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<S> <C>
4.1* Third Amended and Restated Certificate of Incorporation of the Registrant.
4.2* Amended and Restated By-Laws of the Registrant.
5.1 Form of Opinion of Hale and Dorr LLP.
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5.1).
23.2 Consent of Price Waterhouse LLP.
23.3 Consent of KPMG Peat Marwick
24.1 Power of Attorney (included on the signature page of this Registration
Statement).
</TABLE>
* Incorporated by reference herein from Exhibits to the Registrant's
Registration Statement on Form S-1 (File No. 333-50781) as declared
effective by the Commission on August 6, 1998.
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Exhibit 5.1
Hale and Dorr LLP
1455 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
(202) 942-8400/Fax (202) 942-8484
September 3, 1998
Eclipsys Corporation
777 East Atlantic Avenue
Suite 200
Delray Beach, Florida 33483
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
This opinion is furnished to you in connection with a Registration
Statement on Form S-8 (the "Registration Statement") to be filed with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Securities Act"), for the registration of 4,333,333
shares of Common Stock, $.01 par value per share (the "Shares"), of Eclipsys
Corporation, a Delaware corporation (the "Company"), issuable under the
Company's 1996 Stock Plan, 1998 Stock Incentive Plan and Amended and Restated
1998 Employee Stock Purchase Plan (the "Plans").
We have examined the Third Amended and Restated Certificate of
Incorporation and Amended and Restated By-Laws of the Company, each as amended
and restated to date, and originals, or copies certified to our satisfaction,
of all pertinent records of the meetings of the directors and stockholders of
the Company, the Registration Statement and such other documents relating to
the Company as we have deemed material for the purposes of this opinion.
In examination of the foregoing documents, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to
us as originals, the conformity to original documents of all documents
submitted to us as copies, the authenticity of the originals of such latter
documents and the legal competence of all signatories to such documents.
We express no opinion herein as to the laws of any state or
jurisdiction other than the Delaware General Corporation Law statute and the
federal laws of the United States of America.
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly authorized for issuance and the Shares, when issued and
paid for in accordance with the terms of the Plans, will be validly issued,
fully paid and nonassessable.
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Eclipsys Corporation
September 3, 1998
Page 2
It is understood that this opinion is to be used only in connection
with the offer and sale of the Shares while the Registration Statement is in
effect.
Please note that we are opining only as to the matters expressly set
forth herein, and no opinion should be inferred as to any other matters.
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act. In giving such
consent, we do not hereby admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act or the rules and
regulations of the Commission.
Very truly yours,
HALE AND DORR LLP
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Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated June 27, 1997, on the financial
statements of Alltel Healthcare Information Services, Inc. which appears on
page F-24 of the Registration Statement on Form S-1 (No. 333-50781), as
amended, dated August 6, 1998.
/s/ PRICEWATERHOUSECOOPERS LLP
PricewaterhouseCoopers LLP
Atlanta, Georgia
August 31, 1998
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[KPMG PEAT MARWICK LLP LETTERHEAD]
99 HIGH STREET TELEPHONE 617 988 1000 TELEFAX 617 988 0800
BOSTON, MA 02110-2371
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
Eclipsys Corporation
We consent to the incorporation by reference in this registration statement on
Form S-8 of Eclipsys Corporation, of our report dated June 12, 1997 (except for
Note 10 which is as of June 26, 1997), relating to the balance sheets of SDK
Healthcare Information Systems as of April 30, 1997 and the related statements
of operations, stockholders' equity and cash flows for each of the fiscal years
in the two-year period ended April 30, 1997, and the related financial statement
schedule, which report is included in the July 28, 1998 Registration Statement
on Form S-1 of Eclipsys Corporation.
KPMG PEAT MARWICK LLP
Boston, Massachusetts
September 2, 1998
