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As filed with the Securities and Exchange Commission on January 12, 1999
Registration No. 333-________
================================================================================
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 EMPLOYEE STOCK PURCHASE PLAN OF
TRANSITION SYSTEMS, INC.
AND
AMENDED AND RESTATED 1995 INCENTIVE AND
NON-STATUTORY STOCK OPTION PLAN
OF TRANSITION SYSTEMS, INC.
(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
==============================================================================================================
Number of Proposed maximum Proposed maximum Amount of
Title of securities Shares to offering price aggregate offering registration
to be registered be Registered (1) per share price fee
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Common Stock $.01 1,807,096 $ 29.00(2) $52,405,784 $14,569
par value
==============================================================================================================
</TABLE>
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(1) Consists of shares issuable under the 1996 Employee Stock Purchase Plan
and the Amended and Restated 1995 Incentive and Non-Statutory Stock
Option Plan of Transition Systems, Inc., a Massachusetts corporation
("TSI"), which plans were assumed by Eclipsys Corporation pursuant to
that certain Agreement and Plan of Merger, dated October 29, 1998, by
and among Eclipsys Corporation, TSI, and Exercise Acquisition
Corporation, a Massachusetts Corporation and a wholly owned subsidiary
of Eclipsys Corporation.
(2) 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 January 5,
1999 in accordance with Rules 457(c) and 457(h) of the Securities Act of
1933, as amended.
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 Employee Stock Purchase Plan of TSI
and the Amended and Restated 1995 Employee Stock Purchase Plan of TSI,
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.
Eclipsys Corporation (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
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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.
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
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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 (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.
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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.
(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 12th day of
January, 1999.
ECLIPSYS CORPORATION
By: /s/ ROBERT J. VANARIA
------------------------
Robert J. Vanaria
Senior Vice President
and Chief Financial 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>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ HARVEY J. WILSON
-------------------------------------- Chief Executive Officer and January 12, 1999
Harvey J. Wilson President (Principal
Executive Officer)
/s/ ROBERT J. VANARIA
-------------------------------------- Senior Vice President, January 12, 1999
Robert J. Vanaria Administration and Chief
Financial Officer (Principal
Financial and Accounting Officer)
-------------------------------------- Director _______________
Steven A. Denning
/s/ G. FRED DIBONA
-------------------------------------- Director January 12, 1999
G. Fred DiBona
/s/ EUGENE FIFE
-------------------------------------- Director January 12, 1999
Eugene Fife
-------------------------------------- Director _______________
William E. Ford
/s/ JAY B. PIEPER
-------------------------------------- Director January 12, 1999
Jay B. Pieper
-------------------------------------- Director _______________
Richard D. Severns
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ ROBERT F. RACO
-------------------------------------- Director January 12, 1999
Robert F. Raco
/s/ PATRICK T. HACKETT
-------------------------------------- Director January 12, 1999
Patrick T. Hackett
</TABLE>
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EXHIBIT INDEX
<TABLE>
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Exhibit
Number Description
- ------ -----------
<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 Opinion of Hale and Dorr LLP.
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of PricewaterhouseCoopers LLP.
23.4 Consent of KPMG Peat Marwick LLP
23.5 Consent of PricewaterhouseCoopers LLP.
23.6 Consent of Ernst & Young LLP
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.
<PAGE> 1
Exhibit 5.1
Hale and Dorr LLP
1455 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
(202) 942-8400/Fax (202) 942-8484
January 11, 1999
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 up to
1,807,096 shares of Common Stock, $.01 par value per share (the "Shares"), of
Eclipsys Corporation, a Delaware corporation (the "Company"), issuable under the
Transition Systems, Inc. 1996 Employee Stock Purchase Plan and the Transition
Systems, Inc. Amended and Restated 1995 Incentive and Non-Statutory Stock Option
Plan (the "Plans"), which Plans were assumed by the Company pursuant to that
certain Agreement and Plan of Merger, dated October 29, 1998, by and among the
Company, Transition Systems, Inc., a Massachusetts corporation ("TSI") and
Exercise Acquisition Corp., a Massachusetts corporation and a wholly owned
subsidiary of the Company.
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.
<PAGE> 2
Eclipsys Corporation
January 11, 1999
Page 2
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.
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,
/s/ HALE AND DORR LLP
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 April 20, 1998, except as to Note 13,
which is as of June 9, 1998, on the financial statements of Eclipsys Corporation
which appears on page F-2 of the Registration Statement on Form S-4 (No.
333-86353), dated December 4, 1998.
/s/ PricewaterhouseCoopers LLP
- ------------------------------
PricewaterhouseCoopers LLP
Atlanta, Georgia
January 8, 1999
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EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Eclipsys Corporation of our report dated June 27, 1997,
on the financial statements of Alltel Healthcare Information Services, Inc.
which appears on page F-25 of the Registration Statement on Form S-4 (No.
333-68353), dated December 4, 1998.
/s/ PricewaterhouseCoopers LLP
- -------------------------------
PricewaterhouseCoopers LLP
Atlanta, Georgia
January 8, 1999
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CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
Eclipsys Corporation
We consent to the incorporation by reference 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 in this
registration statement of Form S-8 of Eclipsys Corporation.
/s/ KPMG Peat Marwick LLP
Boston, Massachusetts
January 11, 1999
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EXHIBIT 23.5
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation in this registration statement on Form S-8,
of Eclipsys Corporation, of our report dated November 16, 1998, on our audits of
the financial statements of Transition Systems, Inc. as of September 30, 1998
and 1997 and for the years ended September 30, 1998, 1997 and 1996.
/s/ PricewaterhouseCoopers LLP
Boston, Massachusetts
January 12, 1999
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EXHIBIT 23.6
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Form S-8 of Eclipsys
Corporation of our report dated March 13, 1998, except for Note 12 as to which
the date is October 28, 1998, with respect to our audits of the consolidated
financial statements of Health VISION, Inc. for the years ended December 31,
1996 and 1997 included in Eclipsys' Form S-4 (333-68353) filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
Walnut Creek, California
January 7, 1999
