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As filed with the Securities and Exchange Commission on October 22, 1999
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)
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DELAWARE 06-0632092
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
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777 EAST ATLANTIC AVENUE, SUITE 200, DELRAY BEACH, FLORIDA 33483
(Address of Principal Executive Offices) (Zip Code)
MSI SOLUTIONS, INC.
1998 NON-QUALIFIED STOCK OPTION PLAN
(Full title of the Plan)
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)
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CALCULATION OF REGISTRATION FEE
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Number of Proposed maximum Proposed mazimum Amount of
Title of securities Shares to offering price aggregate offering registration
to be registered be Registered (1) per share (2) price fee
- --------------------------------------------------------------------------------------------------------------------------
Common Stock $.01 117,098 $15.03 $1,759,982.94 $483.00
par value
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(1) Consists of shares issuable under the MSI Solutions, Inc. ("MSI")
1998 Non-Qualified Stock Option Plan, which plan was assumed by
Eclipsys Corporation pursuant to that certain Agreement and Plan of
Merger, dated June
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17, 1999, by and among Eclipsys Corporation, MSI, MSI Integrated
Services, Inc., Eclp Merger Corp., A Delaware Corporation and a
wholly owned subsidiary of Eclipsys Corporation, and certain other
parties.
(2) Estimated solely for the purpose of calculating the registration fee,
and based upon the exercise price of the shares issuable under the
MSI 1998 Non-Qualified Stock Option Plan in accordance with Rule
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 MSI 1998 Non-Qualified Stock
Option Plan, 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
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
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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 agreement to become, a
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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 22nd day of October, 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, Robert J. Vanaria and Brent B.
Siler, 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.
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Signature Title Date
- --------- ----- ----
/s/ Harvey J. Wilson Chief Executive Officer and Director October 22, 1999
- ---------------------------------- (Principal Executive Officer)
Harvey J. Wilson
/s/ Robert J. Vanaria Senior Vice President, October 22, 1999
- ---------------------------------- Administration and Chief
Robert J. Vanaria Financial Officer (Principal
Financial and Accounting Officer)
/s/ Steven A. Denning Director October 22, 1999
- ----------------------------------
Steven A. Denning
Director October ___, 1999
- ----------------------------------
G. Fred DiBona
/s/ Eugene V. Fife Director October 22, 1999
- ----------------------------------
Eugene V. Fife
/s/ William E. Ford Director October 22, 1999
- ----------------------------------
William E. Ford
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/s/ Patrick T.Hackett Director October 22, 1999
- ----------------------------------
Patrick T. Hackett
/s/ J. Robert Kell Director October 22, 1999
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J. Robert Kell
Jay B. Pieper Director October 22, 1999
- ----------------------------------
Jay B. Pieper
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EXHIBIT INDEX
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Exhibit
Number Description
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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.
24.1 Power of Attorney (included on the signature page of this Registration Statement).
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* 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
October 22, 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 117,098
shares of Common Stock, $.01 par value per share (the "Shares"), of Eclipsys
Corporation, a Delaware corporation (the "Company"), issuable as a result of the
Company's assumption of the MSI Solutions, Inc. 1998 Non-Qualified Stock Option
Plan (the "Plan"), pursuant to the consummation of that certain Agreement and
Plan of Merger, dated June 17, 1999, by and among the Company, MSI Solutions,
Inc., a Delaware corporation ("MSI"), MSI Integrated Services, Inc., ECLP Merger
Corp., a Delaware corporation and a wholly owned subsidiary of the Company, and
certain other parties.
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.
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Eclipsys Corporation
October 22, 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 Plan, 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
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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 February 19, 1999
relating to the financial statements and financial statement schedules, which
appears in the Eclipsys Corporation Annual Report on Form 10-K for the year
ended December 31, 1998.
/s/ PricewaterhouseCoopers LLP
Atlanta, Georgia
October 22, 1999
