As filed with the Securities and Exchange Commission on July 13, 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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EGAIN COMMUNICATIONS CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 77-0466366
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
455 W. Maude Avenue 94086
Sunnyvale, CA (Zip Code)
(Address of principal
executive offices)
Amended and Restated Inference Corporation 1993 Stock
Option Plan, Inference Corporation 1998 Non-Management Stock
Option Plan, Inference Corporation 1998 New Hire Stock Option Plan,
Inference Corporation Charles W. Jepson Stock Option Plan,
Inference Corporation Private Placement Stock Option Plan and
Inference Corporation Fourth Amended and Restated Incentive Stock
Option Plan and Nonqualified Stock Option Plan
Ashutosh Roy
Chief Executive Officer
eGain Communications Corporation
455 W. Maude Avenue
Sunnyvale, California 94086
(408) 737-7400
(Name, address and telephone
number of agent for service)
<TABLE>
CALCULATION OF REGISTRATION FEE
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<CAPTION>
Amount To Proposed Proposed Amount of
Title of Securities Be Maximum Offering Maximum Aggregate Registration
To Be Registered(1) Registered(2) Price Per Share(3) Offering Price Fee
------------------------------------------------ --------------- ------------------- -------------------- ---------------
<S> <C> <C> <C> <C>
Common Stock, par value $.001 per share: To be
issued under the Amended and Restated
Inference Corporation 1993 Stock Option Plan
assumed by eGain Communications Corporation 639,573 6.07 3,882,209 1,025
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Common Stock, par value $.001 per share: To
be issued under the Inference Corporation 1998
Non-Management Stock Option Plan assumed by
eGain Communications Corporation 565,175 6.63 3,747,111 990
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Common Stock, par value $.001 per share: To be
issued under the Inference Corporation 1998
New Hire Stock Option Plan assumed by eGain
Communications Corporation 88,064 7.01 617,329 163
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Common Stock, par value $.001 per share: To be
issued under the Inference Corporation Charles
W. Jepson Stock Option Plan assumed by eGain
Communications Corporation 294,160 6.12 1,800,260 476
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Common Stock, par value $.001 per share: To be
issued under the Inference Corporate Private
Placement Stock Option Plan assumed by eGain
Communications Corporation 21,917 8.12 177,967 47
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Common Stock, par value $.001 per share: To be
issued under the Inference Corporation Fourth
Amended and Restated Incentive Stock Option
Plan and Nonqualified Stock Option Plan
assumed by eGain Communications Corporation 636 3.40 2,163 1
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Total Registration Fee N/A N/A N/A $2,702
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</TABLE>
<PAGE>
(1) The securities to be registered include options and rights to acquire Common
Stock.
(2) Pursuant to Rule 416(a), this registration statement also covers any
additional securities that may be offered or issued in connection with any stock
split, stock dividend, recapitalization or any other similar transaction
effected without the receipt of consideration, which results in an increase in
the number of the Registrant's outstanding shares of Common Stock.
(3) Estimated pursuant to Rule 457(h) under the Securities Act of 1933, as
amended (the "Securities Act") solely for the purposes of calculating the
registration fee. As to shares subject to outstanding but unexercised options
under the Amended and Restated Inference Corporation 1993 Stock Option Plan,
Inference Corporation 1998 New Hire Stock Option Plan, Inference Corporation
Charles W. Jepson Stock Option Plan, Inference Corporation Private Placement
Stock Option Plan and Inference Corporation Fourth Amended and Restated
Incentive Stock Option Plan and Nonqualified Stock Option Plan, the price is
computed on the basis of the weighted average exercise price.
The Registration Statement shall become effective upon filing in accordance with
Rule 462 under the Securities Act of 1933.
<PAGE>
PART I
ITEM 1. PROGRAM INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PROGRAM ANNUAL INFORMATION.*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act of 1933 (the "Securities Act") and the Note
to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE INFORMATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Securities and
Exchange Commission are hereby incorporated by reference in this Registration
Statement:
(a) Registrant's prospectus dated September 23, 1999 and filed on
September 23, 1999 pursuant to Rule 424(b) of the Securities Act and which
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
Securities Exchange Act of 1934, as amended (the "Exchange Act") since the end
of the fiscal year referred to in (a) above, covered by the Registration
document.
(c) The description of Registrant's Capital Stock contained in
Registrant's registration statement on Form 8-A, filed September 3, 1999
pursuant to Section 12(g) of the Exchange Act.
In addition, all documents subsequently filed by Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of common stock offered hereby has been
passed upon for the Registrant by Pillsbury Madison and Sutro LLP, Palo Alto,
California. As of the date of this Registration Statement, certain partners of
Pillsbury Madison and Sutro LLP beneficially own an aggregate of 51,490 shares
of eGain Communications Corporation common stock.
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<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Registrant's certificate of incorporation limits the liability of
directors to the maximum extent permitted by Delaware law. Delaware law provides
that directors of a corporation will not be personally liable for monetary
damages for breach of their fiduciary duties as directors, except liability for:
o any breach of their duty of loyalty to the corporation or its
stockholders;
o acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
o unlawful payments of dividends or unlawful stock repurchases or
redemptions as provided in Section 17 of the Delaware General
Corporation Law; or
o any transaction from which the director derived an improper
personal benefit.
This limitation of liability does not apply to liabilities arising
under the federal securities laws and does not affect the availability of
equitable remedies such as injunctive relief or rescission.
Registrant's certificate of incorporation and bylaws provide that it
will indemnify its directors and executive officers and may indemnify other
officers and employees and other agents to the fullest extent permitted by law.
Registrant's bylaws also permit it to secure insurance on behalf of any officer,
director, employee or other agent for any liability arising out of his or her
actions in such capacity, regardless of whether the bylaws would permit
indemnification.
Registrant has entered into agreements to indemnify its directors and
executive officers, in addition to indemnification provided for in Registrant's
certificate of incorporation and bylaws. These indemnification agreements
require the Registrant to indemnify such director or officer (an "Indemnitee")
to the fullest extent permitted by Delaware law, and to indemnify such
Indemnitee against expenses and liabilities actually and reasonably incurred in
connection with the investigation, defense, settlement or appeal of any
proceeding to which such Indemnitee was or is threatened to be made a party.
Pursuant to these indemnification agreements, the Registrant shall also advance
to each Indemnitee expenses and costs associated with any above-referenced
proceeding.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index, which list of exhibits is incorporated herein by
reference.
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<PAGE>
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, a post-effective amendment to this
Registration Statement:
(A) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(B) 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; and
(C) 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)(1)(A) and (a)(1)(B)
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 Registrant pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in the
Registration Statement.
(2) 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.
(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.
(b) 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.
(c) 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 Securities Act of 1933 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
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<PAGE>
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 of 1933 and will be governed by the final adjudication of such
issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Sunnyvale, State of California, on the 13th day of
July, 2000.
eGAIN COMMUNICATIONS CORPORATION
By /S/ ASHUTOSH ROY
---------------------------------------
Ashutosh Roy
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Ashutosh Roy, Gunjan Sinha, William
McGrath and Eric Smit, and each of them, his or her true and lawful
attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments, to this Registration
Statement on Form S-8, and to file the same, with 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, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that each of said
attorneys-in-fact and agents or their substitutes 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 below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
<S> <C> <C>
/S/ ASHUTOSH ROY Chief Executive Officer and Director July 13, 2000
----------------------------------------- (Principal Executive Officer)
Ashutosh Roy
/S/ GUNJAN SINHA President and Director July 13, 2000
-----------------------------------------
Gunjan Sinha
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<PAGE>
NAME TITLE DATE
/S/ HARPREET GREWAL Chief Financial Officer (Principal Financial July 13, 2000
----------------------------------------- Officer)
Harpreet Grewal
/S/ ERIC N. SMIT Vice President-Finance and Administration July 13, 2000
----------------------------------------- (Principal Accounting Officer)
Eric N. Smit
----------------------------------------- Director July __, 2000
A. Michael Spence
/S/ MARK A. WOLFSON
----------------------------------------- Director July 13, 2000
Mark A. Wolfson
</TABLE>
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<PAGE>
INDEX TO EXHIBITS
Exhibit
No. Description
------- -----------------------------------------------------------
4.1* Amended and Restated Inference Corporation 1993 Stock Option
Plan assumed by eGain Communications Corporation
4.2** Inference Corporation 1998 Non-Management Stock Option Plan
4.3*** Inference Corporation 1998 New Hire Stock Option Plan
4.4**** Inference Corporation Charles W. Jepson Stock Option Plan
4.5*** Inference Corporation Private Placement Stock Option Plan
4.6***** Inference Corporation Fourth Amended and Restated Incentive
Stock Option Plan and Nonqualified Stock Option Plan
5.1 Opinion regarding legality of the securities being offered
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Pillsbury Madison & Sutro LLP (included in
Exhibit 5.1)
24.1 Powers of Attorney (see page II-5).
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* Incorporated by reference to Exhibit 10.1 to Inference Corporation's
Registration Statement on Form S-1, No. 333-92386 and to Exhibit 10.4
to Inference Corporation's Annual Report on Form 10-K/A for the fiscal
year ended January 31, 1999.
** Incorporated by reference to Exhibit 10.6 to Inference Corporation's
Annual Report on Form 10-K/A for the fiscal year ended January 31,
1999.
*** Incorporated by reference to Exhibit 10.7 from Inference Corporation's
Registration Statement on Form S-8, No. 333-86471 filed on September 3,
1999.
**** Incorporated by reference to Exhibit 10.12 to Inference Corporation's
Form 10-K for the fiscal year ended January 31, 1998.
***** Incorporated by reference to Exhibit 10.2 to Inference Corporation's
Registration Statement on Form S-1, No. 333-92386.
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