<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 23, 1999
REGISTRATION NO. 333-79509
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 2 TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
INTERACTIVE INTELLIGENCE, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
INDIANA 7372 35-1933097
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Classification Code Number) Identification
incorporation or organization) Number)
</TABLE>
8909 PURDUE ROAD
SUITE 300
INDIANAPOLIS, INDIANA 46268
(317) 872-3000
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
------------------------------
JOHN R. GIBBS
EXECUTIVE VICE PRESIDENT
8909 PURDUE ROAD
SUITE 300
INDIANAPOLIS, INDIANA 46268
(317) 872-3000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------------------------
COPIES TO:
JAMES A. ASCHLEMAN MICHAEL A. CAMPBELL
BAKER & DANIELS MAYER, BROWN & PLATT
SUITE 2700 190 SOUTH LASALLE STREET
300 NORTH MERIDIAN STREET CHICAGO, ILLINOIS 60603
INDIANAPOLIS, INDIANA 46204-1782 (312) 782-0600
(317) 237-0300
------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as is practicable after the effective date of this registration
statement.
------------------------------
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. / /
------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF SECURITIES TO AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
BE REGISTERED BE REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) REGISTRATION FEE(3)
<S> <C> <C> <C> <C>
Common Stock, $.01 par value.......... 3,070,500 $13.00 $39,916,500 $11,097
</TABLE>
(1) Includes 400,500 shares subject to over-allotment options granted to the
underwriters.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457 under the Securities Act of 1933.
(3) This amount has been previously paid.
------------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
<PAGE>
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED JULY 23, 1999
P_R_O_S_P_E_C_T_U_S
2,670,000 SHARES
[LOGO]
INTERACTIVE INTELLIGENCE, INC.
COMMON STOCK
--------------
This is Interactive Intelligence's initial public offering of common stock.
The underwriters will offer 2,670,000 shares in the United States and Canada.
We expect the public offering price to be between $11 and $13 per share.
Currently, no public market exists for the shares. We have applied to have the
common stock approved for quotation on the Nasdaq National Market under the
symbol "ININ."
INVESTING IN THE COMMON STOCK INVOLVES RISKS WHICH ARE DESCRIBED IN THE
"RISK FACTORS" SECTION BEGINNING ON PAGE 7 OF THIS PROSPECTUS.
-----------------
<TABLE>
<CAPTION>
PER SHARE TOTAL
------------- -----
<S> <C> <C>
Public offering price........................................ $ $
Underwriting discount........................................ $ $
Proceeds, before expenses, to Interactive Intelligence....... $ $
</TABLE>
The underwriters may also purchase up to an additional 330,500 shares from
us and 70,000 shares from one of our stockholders at the public offering price,
less the underwriting discount, within 30 days from the date of this prospectus
to cover over-allotments.
At our request, the underwriters have reserved up to 7% of the shares of our
common stock offered by this prospectus for sale, at the initial public offering
price, to some of our employees, executive officers, directors and resellers and
to some individuals designated by them. The number of shares of common stock for
sale to the general public in this offering will be reduced to the extent those
persons purchase the reserved shares.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The shares of common stock will be ready for delivery in New York, New York
on or about , 1999.
------------------
MERRILL LYNCH & CO.
HAMBRECHT & QUIST
U.S. BANCORP PIPER JAFFRAY
------------------
THE DATE OF THIS PROSPECTUS IS , 1999.
<PAGE>
[FLAP 1]
[(INSIDE FRONT COVER)]
[GRAPHIC DEPICTION OF THE ENTERPRISE INTERACTION CENTER
AND ITS FUNCTIONS AND FEATURES]
ENTERPRISE INTERACTION CENTER (EIC) CAN BE USED TO AUTOMATE VIRTUALLY EVERY
ASPECT OF BUSINESS COMMUNICATIONS ON A WINDOWS NT SERVER.
<PAGE>
[FLAP 2]
[GRAPHIC DEPICTION OF THE EIC INTERACTION PROCESSOR, AND ITS
CONNECTIVITY TO TELEPHONE, E-MAIL, WEB BROWSER AND FAX]
EIC ALLOWS ORGANIZATIONS TO AUTOMATE THE PROCESSING OF NOT ONLY TELEPHONE
CALLS BUT FAXES, E-MAIL MESSAGES, AND WEB-BASED INTERACTIONS INCLUDING TEXT
CHATS, VOICE OVER IP CALLS, AND WEB CALLBACK REQUESTS.
<PAGE>
[FLAP 3]
ENTERPRISE
INTERACTION
CENTER-Registered Trademark-
[SCREEN CAPTURES OF INTERACTION CLIENT, INTERACTION
DESIGNER AND UNIVERSAL IN-BOX]
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
---------
<S> <C>
Prospectus Summary......................................................................................... 3
Forward-Looking Statements................................................................................. 7
Risk Factors............................................................................................... 7
Use of Proceeds............................................................................................ 18
Dividend Policy............................................................................................ 18
Capitalization............................................................................................. 19
Dilution................................................................................................... 20
Selected Consolidated Financial Data....................................................................... 21
Management's Discussion and Analysis of Financial Condition and Results of Operations...................... 22
Business................................................................................................... 32
Management................................................................................................. 47
Executive Compensation..................................................................................... 51
Certain Transactions....................................................................................... 58
Principal and Selling Stockholders......................................................................... 60
Description of Capital Stock............................................................................... 61
Shares Eligible for Future Sale............................................................................ 65
Underwriting............................................................................................... 67
Legal Matters.............................................................................................. 70
Experts.................................................................................................... 70
Additional Information..................................................................................... 70
Index to Consolidated Financial Statements................................................................. F-1
</TABLE>
------------------------
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS PROSPECTUS. WE
HAVE NOT, AND THE UNDERWRITERS HAVE NOT, AUTHORIZED ANY OTHER PERSON TO PROVIDE
YOU WITH DIFFERENT INFORMATION. IF ANYONE PROVIDES YOU WITH DIFFERENT OR
INCONSISTENT INFORMATION, YOU SHOULD NOT RELY ON IT. WE ARE NOT, AND THE
UNDERWRITERS ARE NOT, MAKING AN OFFER TO SELL THESE SECURITIES IN ANY
JURISDICTION WHERE THE OFFER OR SALE IS NOT PERMITTED.
2
<PAGE>
PROSPECTUS SUMMARY
THIS SUMMARY HIGHLIGHTS SELECTED INFORMATION FROM THIS PROSPECTUS. TO
UNDERSTAND THIS OFFERING FULLY, YOU SHOULD READ THE ENTIRE PROSPECTUS CAREFULLY,
INCLUDING THE RISK FACTORS AND THE FINANCIAL STATEMENTS AND RELATED NOTES,
BEFORE YOU DECIDE WHETHER TO INVEST IN OUR COMMON STOCK.
OUR COMPANY
We are a leading developer of enterprise software that allows our customers
to automate virtually every aspect of their business communications. When
installed on a Windows NT-Registered Trademark- server, our flagship product,
Enterprise Interaction Center-Registered Trademark- or EIC, provides a single,
integrated solution capable of processing thousands of interactions per hour,
including telephone calls, e-mails, faxes, voice mail messages, Internet chat
sessions, Web callback requests and voice over Net calls. EIC is a unique
software solution that replaces a variety of traditional devices such as private
branch exchange devices or PBXs, interactive voice response systems or IVRs,
automatic call distributors or ACDs, voice mail systems, fax servers, call
recorders and computer telephony integration or CTI gateways. We began licensing
our products in 1997 and have grown our total revenues from $1.6 million in 1997
to $9.0 million in 1998.
OUR INDUSTRY
Due to a broad combination of factors, including deregulation, consolidation
and advances in technology, organizations are looking to communications
technology to increase efficiency and provide better service. We believe we are
well positioned to take advantage of the following major trends taking place
within many industries.
- GROWTH OF CALL CENTERS. To consolidate customer contact points and focus
on customer service, organizations are frequently implementing formal call
centers. We believe that the market for call center communications
products in 1998 represented approximately 55% of the estimated $10.0
billion computer telephony industry, and we expect this market to grow at
25% to 30% annually.
- INCREASING VARIETY AND COMPLEXITY OF BUSINESS COMMUNICATIONS. In addition
to more traditional communications media such as telephone, fax and voice
mail, the growth of the Internet has expanded the number and complexity of
business communications to include e-mail, Internet chat sessions, Web
callback requests and voice over Net calls. We believe that approximately
one-fifth of customer contact will shift from the phone to the Internet in
the next two years.
- INCREASING NEED TO INTEGRATE BUSINESS COMMUNICATIONS AND COMPUTER
SYSTEMS. Historically, telecommunications systems and information systems
have been separate and distinct. To more effectively and efficiently
interact, both internally and externally, enterprises need to seamlessly
access and utilize these two systems.
- ENTRANCE OF NEW SERVICE PROVIDERS. The Telecommunications Act of 1996
deregulated many aspects of the communications market and resulted in a
rapid increase in the number and types of organizations seeking to provide
communications and other services. These new service provider entrants
include local exchange carriers, cable companies, Internet service
providers and wireless companies.
We believe the traditional multi-device approach to communications by
organizations is inadequate to address the needs created by these trends. We
believe the shortcomings of this approach create a significant opportunity for a
single, all-in-one solution based on standard hardware and software technology
that enables organizations to efficiently and effectively interact with all of
their constituents.
3
<PAGE>
OUR SOLUTION
We believe that EIC provides our end-user customers with an all-in-one
communications solution that has the following advantages over the traditional
multi-device approach:
- BROADER RANGE OF FUNCTIONS. Unlike traditional systems that require
end-user customers to purchase separate products to attain broader
functionality, EIC is an all-in-one system that offers a broad suite of
communications features.
- REDUCED NEED TO INTEGRATE DISPARATE TECHNOLOGIES. EIC pre-assembles all
the necessary components into one software solution, allowing end-user
customers to concentrate their efforts on improving business operations.
- OPEN ARCHITECTURE AND BETTER COMPATIBILITY WITH LEADING TECHNOLOGIES. Our
products are built around industry standard hardware and software
components such as Intel microprocessors and the Microsoft Windows
NT-Registered Trademark- operating system.
- LOWER TOTAL COST OF OWNERSHIP. EIC's capabilities reside in a single
Windows NT-Registered Trademark- server, resulting in a lower total cost
of ownership due to the reduced time and expense typically required to
maintain a centralized software-based communications system.
- GREATER ABILITY TO CUSTOMIZE COMMUNICATIONS TO MEET SPECIFIC NEEDS. While
EIC can be deployed quickly with minimal configuration, organizations can
also customize many aspects of their communications processing using EIC's
graphical application generator.
OUR CUSTOMERS
We design our software to meet the needs of end-user customers in three
growing markets: call centers, enterprises and service providers. We license our
products to over 250 end-user customers, including Ameritech Corporation,
BuyItNow, Inc., Deutsche Telekom Berkom Gmbh, Seagate Technology, Inc. and
Toshiba America Consumer Products. We market our software products and services
through an extensive distribution network consisting of over 100 independent
resellers in North America, Europe and the Asia/Pacific region. Our resellers
range from relatively small, local organizations to large regional and national
firms, such as Bell South Communication Systems, Inc. and KPN Telecom B.V. We
also provide our end-user customers and resellers with technical support,
educational and professional services.
OUR GROWTH STRATEGY
Our primary business objective is to become the leading vendor of enterprise
software that allows call centers, enterprises and service providers to automate
virtually every aspect of their business communications. Our strategy for
achieving this objective incorporates the following key elements:
- CONTINUE TO EXPAND OUR LEADING TECHNOLOGY POSITION. We have significant
technical expertise in call center, communications and software
technologies. We intend to use our expertise to add new features to our
products, improve the ability of our current and future products to handle
the needs of larger organizations, and broaden the compatibility of our
products to work with other systems and applications used by our
customers.
- BROADEN OUR PRODUCT OFFERING. We plan to broaden our product offering with
additional products and features for our target markets.
- FURTHER EXPAND OUR GLOBAL DISTRIBUTION CHANNEL. We plan to further expand
our existing distribution channel, which currently consists of over 100
resellers in more than 20 countries.
- DEVELOP OUR STRATEGIC BUSINESS RELATIONSHIPS. We have strategic
relationships with leading technology companies, including Microsoft
Corporation, which recently recognized us as the
4
<PAGE>
ninth fastest growing independent software vendor using Microsoft
Windows-Registered Trademark-. In addition to our relationships with
technology companies, we intend to pursue strategic relationships with
network equipment vendors as well as developers of customer relationship
management software.
OUR ADDRESS
We are incorporated in Indiana, and our worldwide headquarters are located
at 8909 Purdue Road, Suite 300, Indianapolis, Indiana 46268. Our telephone
number is (317) 872-3000, and our Web site is www.inter-intelli.com. The
information on our Web site is not part of this prospectus.
THE OFFERING
Unless stated otherwise, all financial information and share and per share
data in this prospectus
- give effect to the three-for-two stock split that was effected on July 12,
1999;
- assume that the underwriters do not exercise their over-allotment option;
and
- do not include shares reserved for issuance under our stock option plans.
Our common stock outstanding after the offering includes shares issuable upon
the exercise of options outstanding under our stock option plans. As of June 30,
1999, there were 2,256,954 shares issuable upon the exercise of outstanding
options, of which 404,604 were exercisable, and 3,676,875 shares available for
future awards of options under these plans. See "Executive Compensation--Stock
Option Plans" and "Underwriting."
<TABLE>
<S> <C>
Common stock offered......................... 2,670,000 shares
Common stock outstanding after the 13,370,121 shares
offering...................................
Use of proceeds.............................. For general corporate purposes, including
working capital and potential acquisitions,
for repayment of lines of credit and for
repayment of indebtedness and payment of
deferred compensation and other non-interest
bearing accounts payable to our principal
stockholder. See "Use of Proceeds."
Risk factors................................. See "Risk Factors" for a discussion of
factors you should carefully consider before
deciding whether to invest in shares of our
common stock.
Nasdaq National Market symbol................ ININ
</TABLE>
5
<PAGE>
SUMMARY CONSOLIDATED FINANCIAL INFORMATION
(IN THOUSANDS, EXCEPT PER SHARE DATA)
THE FOLLOWING TABLE SUMMARIZES THE FINANCIAL INFORMATION FOR INTERACTIVE
INTELLIGENCE. YOU SHOULD READ THIS INFORMATION WITH THE FINANCIAL STATEMENTS AND
NOTES TO THE FINANCIAL STATEMENTS APPEARING ELSEWHERE IN THIS PROSPECTUS. SEE
"MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS." THE AS ADJUSTED CONSOLIDATED BALANCE SHEET DATA REFLECT APPLICATION
OF THE ESTIMATED NET PROCEEDS FROM THE SALE OF 2,670,000 SHARES IN THIS
OFFERING, BASED ON AN ASSUMED INITIAL PUBLIC OFFERING PRICE OF $12.00 PER SHARE
LESS UNDERWRITING DISCOUNTS OF $2.2 MILLION AND ESTIMATED EXPENSES OF $650,000,
AS DESCRIBED IN "USE OF PROCEEDS."
<TABLE>
<CAPTION>
SIX MONTHS
OCTOBER 1, 1994 YEAR ENDED DECEMBER 31, ENDED JUNE 30,
(INCEPTION) TO ------------------------------------------ ----------------------
DECEMBER 31, 1994 1995 1996 1997 1998 1998 1999
------------------- --------- --------- --------- --------- --------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
CONSOLIDATED STATEMENT OF
OPERATIONS DATA:
Revenues:
Software...................... $ -- $ -- $ -- $ 1,265 $ 7,662 $ 2,980 $ 5,482
Services...................... -- -- -- 325 1,349 407 1,826
------ --------- --------- --------- --------- --------- -----------
Total revenues.................. -- -- -- 1,590 9,011 3,387 7,308
Costs and expenses:
Costs of software............. -- -- -- 38 59 24 60
Costs of services............. -- -- -- 1,258 3,381 1,387 2,360
Sales and marketing........... -- 19 157 2,519 6,623 2,715 4,553
Research and development...... 8 297 987 2,118 4,065 1,837 3,004
General and administrative.... -- 99 192 742 1,407 590 1,135
------ --------- --------- --------- --------- --------- -----------
Total costs and expenses........ 8 415 1,336 6,675 15,535 6,553 11,112
------ --------- --------- --------- --------- --------- -----------
Operating loss.................. (8) (415) (1,336) (5,085) (6,524) (3,166) (3,804)
Interest expense, net........... -- 1 43 361 868 428 398
------ --------- --------- --------- --------- --------- -----------
Loss before income taxes........ (8) (416) (1,379) (5,446) (7,392) (3,594) (4,202)
Income taxes.................... -- -- -- -- -- -- --
------ --------- --------- --------- --------- --------- -----------
Net loss........................ $ (8) $ (416) $ (1,379) $ (5,446) $ (7,392) $ (3,594) $ (4,202)
------ --------- --------- --------- --------- --------- -----------
------ --------- --------- --------- --------- --------- -----------
Basic and diluted net loss per
share......................... $ (0.01) $ (0.21) $ (0.33) $ (0.71) $ (0.84) $ (0.44) $ (0.40)
Shares used in per share
computation................... 1,500 1,966 4,216 7,642 8,816 8,203 10,538
<CAPTION>
AT JUNE 30, 1999
----------------------
ACTUAL AS ADJUSTED
--------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
CONSOLIDATED BALANCE SHEET DATA:
Cash and cash equivalents...................................................................... $ 87 $ 20,283
Working capital (deficit)...................................................................... (3,167) 18,084
Total assets................................................................................... 7,798 27,994
Long-term debt................................................................................. 8,523 627
Total shareholders' equity (deficit)........................................................... (7,997) 21,150
</TABLE>
6
<PAGE>
FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements that reflect our views
about future events and financial performance. Forward-looking statements are
subject to known and unknown risks, uncertainties and other factors that may
cause our and our industry's actual results, levels of activity, performance,
achievements and prospects to be materially different from those expressed or
implied by those forward-looking statements. These risks, uncertainties,
assumptions and other factors include, among others, those identified under
"Risk Factors" and elsewhere in this prospectus. In light of these risks,
uncertainties and assumptions, the forward-looking events discussed in this
prospectus might not occur. In addition, actual results could differ materially
from those suggested by the forward-looking statements, and therefore you should
not place undue reliance on the forward-looking statements.
RISK FACTORS
INVESTING IN OUR COMMON STOCK WILL PROVIDE YOU WITH AN EQUITY OWNERSHIP IN
INTERACTIVE INTELLIGENCE. AS AN INTERACTIVE INTELLIGENCE STOCKHOLDER, YOU MAY BE
SUBJECT TO RISKS INHERENT IN OUR BUSINESS. THE PERFORMANCE OF YOUR SHARES WILL
REFLECT THE PERFORMANCE OF OUR BUSINESS RELATED TO, AMONG OTHER THINGS, OUR
COMPETITION, GENERAL ECONOMIC AND MARKET CONDITIONS AND INDUSTRY CONDITIONS. THE
PRICE OF OUR COMMON STOCK MAY DECLINE AND THE VALUE OF YOUR INVESTMENT COULD
DECREASE. YOU SHOULD CAREFULLY CONSIDER THE FOLLOWING FACTORS AS WELL AS OTHER
INFORMATION CONTAINED IN THIS PROSPECTUS BEFORE DECIDING WHETHER TO INVEST IN
SHARES OF OUR COMMON STOCK.
OUR LIMITED OPERATING HISTORY MAKES FINANCIAL FORECASTING DIFFICULT AND, IN
ASSESSING OUR PROSPECTS, YOU SHOULD CONSIDER OUR EARLY STAGE OF DEVELOPMENT AND
PRESENCE IN A NEW AND RAPIDLY EVOLVING INDUSTRY
Our limited operating history makes it difficult to forecast our future
operating results. We commenced operations in October 1994, but did not begin
shipping our principal product, Enterprise Interaction Center or EIC, until
March 1997. Accordingly, you should assess our prospects in light of the risks
and difficulties frequently encountered by companies in the early stage of
development, particularly companies in new and rapidly evolving industries.
WE HAVE HISTORICALLY INCURRED LOSSES AND WE MAY NOT ACHIEVE PROFITABILITY
We have not operated profitably to date. We incurred net losses of $7.4
million in 1998 and $4.2 million for the six-month period ended June 30, 1999.
At June 30, 1999, we had accumulated losses since inception of $18.8 million. We
intend to continue to make significant investments in our research and
development, marketing, services and sales operations. We anticipate that these
expenses could significantly precede any revenues generated by the increased
spending. As a result, we are likely to continue to experience losses and
negative cash flow from operations in future quarters. If we do become
profitable, we may not sustain or increase our profitability. See "Management's
Discussion and Analysis of Financial Condition and Results of Operations."
OUR QUARTERLY OPERATING RESULTS HAVE VARIED SIGNIFICANTLY AND, IF SEVERAL
FACTORS AFFECTING OUR BUSINESS CAUSE THEM TO CONTINUE TO DO SO, THE MARKET PRICE
OF OUR COMMON STOCK COULD BE AFFECTED
Our operating results have varied significantly from quarter to quarter and
may continue to do so in the future depending upon a number of factors affecting
us or our industry described below and elsewhere in this prospectus, including
many that are beyond our control. As a result, we believe that period-to-period
comparisons of our operating results are not necessarily meaningful, and you
should not rely on them as an indication of our future performance. In addition,
our operating results in a future quarter or quarters may fall below
expectations of securities analysts or investors and, as a result, the price of
our common stock may fluctuate.
7
<PAGE>
Because we do not know when our potential end-user customers will place
orders and finalize contracts, we cannot accurately forecast our revenues and
operating results for future quarters. We recognize revenues upon satisfaction
of the requirements of AICPA Statement of Position 97-2, which generally occurs
in the same quarter that the order is received. As a result, our quarterly
revenues and operating results depend primarily on the size, quantity and timing
of orders received for our products during each quarter. If a large number of
orders or several large orders do not occur or are deferred or delayed, our
revenues in a quarter could be substantially reduced. This risk is heightened by
the significant investment and executive level decision making typically
involved in our end-user customers' decisions to license our products. Since a
large portion of our operating expenses, including rent and salaries, is fixed
and difficult to reduce or modify, our business, financial condition or results
of operations could be materially adversely affected if revenues do not meet our
expectations.
Because of our early stage of development and limited number of products,
changes in pricing policies and the timing of the development, announcement and
sale of new or upgraded versions of our products are some of the additional
factors that could cause our revenues and operating results to vary
significantly from quarter to quarter. We are releasing EIC Version 1.3 during
July 1999, as described in "Business--Products."
WE HAVE A LENGTHY PRODUCT SALES CYCLE, WHICH HAS CONTRIBUTED, AND MAY CONTINUE
TO CONTRIBUTE, TO THE QUARTER-TO-QUARTER VARIABILITY OF OUR REVENUES AND
OPERATING RESULTS, WHICH COULD AFFECT THE MARKET PRICE OF OUR COMMON STOCK
We have generally experienced a lengthy product sales cycle, averaging
approximately six to nine months. The lengthy sales cycle is one of the factors
that has caused, and may in the future continue to cause, our software revenues
and operating results to vary significantly from quarter to quarter, which could
affect the market price of our common stock. It also makes it difficult for us
to forecast product license revenues. Because of the unique characteristics of
our products, our prospective end-user customers' decisions to license our
products often require significant investment and executive level decision
making. We believe that many companies currently are not aware of the benefits
of enterprise software of the type we license or of our products and
capabilities. For this reason, we must provide a significant level of education
to prospective end-user customers about the use and benefits of our products,
which can cause potential end-user customers to take many months to make these
decisions. As a result, sales cycles for end-user customer orders vary
substantially from customer to customer. Excessive delay in product sales could
materially adversely affect our business, financial condition or results of
operations.
The length of the sales cycle for end-user customer orders depends on a
number of other factors over which we have little or no control, including:
- an end-user customer's budgetary constraints;
- the timing of an end-user customer's budget cycles;
- concerns by end-user customers about the introduction of new products by
us or our competitors; and
- potential downturns in general economic conditions, including reductions
in demand for call center services.
To the extent that potential end-user customers divert resources and attention
to issues associated with the Year 2000 problem, our sales cycle could lengthen
further. See "--Year 2000 issues may adversely affect our business." In
addition, the sales cycle for our products in international markets has been,
and is expected to continue to be, longer than the sales cycle in the United
States. The average sales cycle for our products may lengthen as we expand
internationally.
8
<PAGE>
OUR INABILITY TO MANAGE SUCCESSFULLY OUR GROWTH OR OUR INCREASINGLY COMPLEX
THIRD PARTY RELATIONSHIPS COULD ADVERSELY AFFECT US
If we are not able to manage our growth successfully, we will not grow as
planned and our business could be adversely affected. We have grown revenues
from $1.6 million in 1997 to $9.0 million in 1998, and we intend to continue to
grow our business operations significantly in the future. Our existing
management, operational, financial and human resources and management
information systems and controls may be inadequate to support our future
operations. In addition, as the complexity of our product technology and our
reseller and other third-party relationships have increased, the management of
those relationships and the negotiation of contractual terms sufficient to
protect our rights and limit our potential liabilities has become more
complicated, and we expect this trend to continue in the future. As a result,
our inability to successfully manage these relationships or negotiate sufficient
contractual terms could have a material adverse effect on us.
WE FACE COMPETITIVE PRESSURES, WHICH MAY HAVE A MATERIAL ADVERSE EFFECT ON US
The market for our software products is highly competitive and, because
there are relatively low barriers to entry in the software market, we expect
competition to increase significantly in the future. In addition, because our
industry is new and evolving and characterized by rapid technological change, it
is difficult for us to predict whether, when and by whom new competing
technologies or new competitors may be introduced into our markets. Currently,
our competition comes from several different market segments, including computer
telephony platform developers, computer telephony applications software
developers and telecommunications equipment vendors. We cannot assure you that
we will be able to compete effectively against current and future competitors.
In addition, increased competition or other competitive pressures may result in
price reductions, reduced margins or loss of market share, any of which could
have a material adverse effect on our business, financial condition or results
of operations. See "Business--Competition."
Many of our current and potential competitors have longer operating
histories, significantly greater financial, technical, marketing, customer
service and other resources, greater name recognition and a larger installed
base of customers than we do. As a result, these competitors may be able to
respond to new or emerging technologies and changes in customer requirements
faster and more effectively than we can, or to devote greater resources to the
development, promotion and sale of products than we can. Current and potential
competitors have established, and may in the future establish, cooperative
relationships among themselves or with third parties, including mergers or
acquisitions, to increase the ability of their products to address the needs of
our current or prospective end-user customers. If these competitors were to
acquire significant market share, it could have a material adverse effect on our
business, financial condition or results of operations.
WE MAY NOT BE ABLE TO GROW OUR BUSINESS AS PLANNED IF WE DO NOT MAINTAIN
SUCCESSFUL RELATIONSHIPS WITH OUR RESELLERS AND CONTINUE TO RECRUIT AND TRAIN
ADDITIONAL RESELLERS
Our ability to achieve revenue growth in the future will depend in part on
our success in maintaining successful relationships with our existing and future
resellers and in recruiting and training additional resellers. We rely primarily
on resellers to market and support our products. We are still developing and
refining our reseller distribution network and may be unable to attract
additional resellers with both voice and data expertise that will be able to
market our products effectively and that will be qualified to provide timely and
cost-effective customer support and service. We generally do not have long-term
or exclusive agreements with our resellers, and the loss of specific larger
resellers or a significant number of resellers could materially adversely affect
our business, financial condition or results of operations.
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OUR MARKETS ARE CHARACTERIZED BY RAPID TECHNOLOGICAL CHANGE WHICH MAY CAUSE US
TO INCUR SIGNIFICANT DEVELOPMENT COSTS AND PREVENT US FROM ATTRACTING NEW
CUSTOMERS
The market for our products is characterized by rapid technological change,
frequent new product introductions and enhancements, uncertain product life
cycles and changing end-user customer demands. The introduction of products
embodying new technologies and the emergence of new industry standards could
render existing products obsolete or unmarketable and cause us to incur
significant development costs.
A DECLINE IN MARKET ACCEPTANCE FOR MICROSOFT CORPORATION TECHNOLOGIES ON WHICH
OUR PRODUCTS RELY COULD HAVE A MATERIAL ADVERSE EFFECT ON US
EIC currently runs only on Microsoft Windows NT-Registered Trademark-
servers. In addition, our products use other Microsoft Corporation technologies,
including Microsoft Exchange Server-Registered Trademark- and Microsoft SQL
Server-Registered Trademark-. A decline in market acceptance for Microsoft
technologies or the increased acceptance of other server technologies could
cause us to incur significant development costs and could have a material
adverse effect on our ability to market our current products. Although we
believe that Microsoft technologies will continue to be widely used by
businesses, we cannot assure you that businesses will adopt these technologies
as anticipated or will not in the future migrate to other computing technologies
that we do not currently support. In addition, our products and technologies
must continue to be compatible with new developments in Microsoft technologies.
OUR FUTURE BUSINESS PROSPECTS DEPEND IN PART ON OUR ABILITY TO MAINTAIN AND
IMPROVE OUR CURRENT PRODUCTS AND DEVELOP NEW PRODUCTS
We believe that our future business prospects depend in large part on our
ability to maintain and improve our current products and to develop new products
on a timely basis. Our products will have to achieve market acceptance, maintain
technological competitiveness and meet an expanding range of end-user customer
requirements. As a result of the complexities inherent in our products, major
new products and product enhancements require long development and testing
periods. We may not be successful in developing and marketing, on a timely and
cost effective basis, product enhancements or new products that respond to
technological change, evolving industry standards or end-user customer
requirements. We may also experience difficulties that could delay or prevent
the successful development, introduction or marketing of product enhancements,
and our new products and product enhancements may not achieve market acceptance.
Significant delays in the general availability of new releases of our products
or significant problems in the installation or implementation of new releases of
our products could have a material adverse effect on our business, financial
condition or results of operations. We are releasing EIC Version 1.3 during July
1999, as described in "Business--Products."
SLOWER THAN ANTICIPATED GROWTH IN DEMAND FOR ENTERPRISE SOFTWARE OF THE TYPE WE
LICENSE COULD MATERIALLY ADVERSELY AFFECT OUR GROWTH PROSPECTS
If the demand for enterprise software of the type we license does not
continue to grow as anticipated within each of our three targeted markets, our
ability to grow our business as planned could be materially adversely affected.
All of our revenues have been generated from licenses of our EIC software or
complementary products, and related support, educational and professional
services. We expect these products and services to account for the majority of
our revenues for the foreseeable future. Although we believe demand for the
functions performed by EIC is high, and growth in demand has accelerated in
recent years, particularly among call centers, the market for our products and
services is still emerging. Further, our growth plans require us to successfully
attract end-user customers in our two other target markets, enterprises and
service providers, which have been much slower to adopt software technologies
such as our EIC product.
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IF WE ARE UNABLE TO ADAPT OUR SOFTWARE IN A WAY THAT WILL PERMIT US TO SERVE
LARGE, SINGLE-SITE END-USER CUSTOMERS, THE MARKETABILITY OF EIC COULD BE
ADVERSELY AFFECTED
EIC currently serves small to medium sized call centers and enterprises with
approximately 25 to 300 users at a single location. As these organizations
expand to include multiple locations, EIC can be customized to increase the
number of telephone lines, extensions and users. However, EIC cannot currently
meet the communications needs of organizations with more than 200 users at a
single call center location or 300 users at a single enterprise location. We
will need to adapt our software to serve larger single-site organizations. We
may not be able to adapt our software in a timely or cost effective manner in a
way that will permit us to serve these customers. This inability could have a
material adverse effect on our business, financial condition or results of
operations.
DIALOGIC CORPORATION MAY BECOME UNWILLING OR UNABLE TO CONTINUE TO MANUFACTURE
AND SUPPLY US WITH VOICE PROCESSING BOARDS, REQUIRING US TO INTRODUCE A
SUBSTITUTE SUPPLIER WHICH COULD PROVE DIFFICULT OR COSTLY
Dialogic Corporation is currently our only supplier of the voice processing
boards that are necessary for the operation of EIC. If Dialogic Corporation
becomes unable or unwilling to continue to manufacture and supply these voice
processing boards in the volume, price and technical specifications we require,
then we would have to adapt our products to a substitute supplier. Introducing a
new supplier of voice processing boards could result in unforeseen additional
product development or customization costs and could also introduce hardware and
software operating or compatibility problems. These problems could affect
product shipments, be costly to correct or damage our reputation in the markets
in which we operate, and could have a material adverse affect on our business,
financial condition or results of operations.
In addition, Intel Corporation recently acquired Dialogic Corporation. While
Intel Corporation does not currently offer a product that competes with our EIC,
Intel Corporation could potentially develop a competitive or superior product or
attempt to affect our current relationship with Dialogic Corporation.
In addition, Dialogic Corporation's CT Media offers some of the
functionality that EIC provides and consequently could make it easier for
competitors or potential competitors to provide products competitive with ours.
If CT Media were to become an industry standard, our failure to adopt it could
disadvantage us in competitive situations. See "Certain
Transactions--Relationship with Dialogic."
WE MAY NOT BE ABLE TO PROTECT OUR PROPRIETARY RIGHTS ADEQUATELY, WHICH COULD
ALLOW THIRD PARTIES TO COPY OR OTHERWISE OBTAIN AND USE OUR TECHNOLOGY WITHOUT
AUTHORIZATION
We regard our software products as proprietary. In an effort to protect our
proprietary rights, we rely primarily on a combination of copyright, trademark
and trade secret laws, as well as licensing and other agreements with
consultants, suppliers, strategic partners, resellers and end-user customers,
and employee and third-party non-disclosure agreements. These laws and
agreements provide only limited protection of our proprietary rights. In
addition, we have not signed agreements containing these types of protective
provisions in every case, and the contractual provisions that are in place and
the protection they provide vary and may not provide us with adequate protection
in all circumstances. Although we have recently filed patent applications
directed to several inventions embodied in our software products, we currently
have no patents or registered copyrights. Because our means of protecting our
proprietary rights may not be adequate, it may be possible for a third party to
copy or otherwise obtain and use our technology without authorization. A third
party could also develop similar technology independently. In addition, the laws
of some countries in which we sell our products do not protect our software and
intellectual property rights to the same extent as the laws of the United
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States. Unauthorized copying, use or reverse engineering of our products could
materially adversely affect our business, results of operations or financial
condition.
We license technology that is embedded in our products from others. If one
or more of these licenses terminates or cannot be renewed on satisfactory terms,
we would have to modify the affected products to use alternative technology or
eliminate the affected product function, either of which could have a material
adverse effect on us.
INFRINGEMENT CLAIMS COULD ADVERSELY AFFECT US
A third party could claim that our technology infringes its proprietary
rights. As the number of software products in our target markets increases and
the functionality of these products overlap, we believe that software developers
may face infringement claims. For example, various patent rights have been
asserted against interfaces between PBX hardware and computer network systems.
Although we believe that our products do not infringe any of these patents
because, among other reasons, our products are designed to replace PBXs and not
to create such interfaces, if these patents were interpreted broadly, claims of
infringement of these patents could have a material adverse affect on us.
In June 1999, we received a letter from a large, well capitalized competitor
in the call center market claiming that our products utilize technologies
pioneered and patented by that competitor. These patented technologies relate to
a variety of call management functions. It is unclear which features of our
products this competitor believes utilize these technologies. Our patent
counsel, Woodard, Emhardt, Naughton, Moriarty & McNett, has reviewed all of the
15 patents listed in the letter from the competitor. Based upon the advice of
our patent counsel, we believe that our products do not infringe any of the 15
patents listed. We intend to discuss our conclusion with the competitor, but we
cannot assure you that it will concur in our conclusion or that this matter can
be resolved amicably, without infringement claims being made by the competitor
or without a material adverse effect on our business, financial condition or
results of operations.
Infringement claims, even if without merit, can be time consuming and
expensive to defend. A third party asserting infringement claims against us or
our customers with respect to our current or future products may require us to
enter into costly royalty arrangements or litigation, or otherwise materially
adversely affect us. See "Business--Intellectual Property and Other Proprietary
Rights."
WE DEPEND ON KEY PERSONNEL AND WILL NEED TO RECRUIT ADDITIONAL SKILLED
PERSONNEL, FOR WHICH COMPETITION IS INTENSE, TO CONDUCT AND GROW OUR BUSINESS
EFFECTIVELY
Our success depends in large part on the continued service of our key
personnel, particularly Dr. Donald E. Brown, our co-founder, Chief Executive
Officer and principal stockholder, and Dr. Michael D. Gagle, our Chief
Scientist. The loss of the services of either of these individuals or any key
personnel could have a material adverse effect on our business, financial
condition or results of operations. We have a key man life insurance policy on
Dr. Brown in the amount of $3.0 million. Our future success also depends upon
our ability to attract, train, assimilate and retain additional qualified
personnel. Competition for persons with skills in the software industry is
intense, particularly for those with relevant technical experience. We cannot
assure you that we will be able to retain our key employees or that we can
attract, train, assimilate or retain other highly qualified personnel in the
future. See "Management" for a description of some of our key personnel.
WE MAY PURSUE ACQUISITIONS THAT BY THEIR NATURE PRESENT RISKS AND THAT MAY NOT
BE SUCCESSFUL
In the future we may pursue acquisitions to diversify our product offerings
and customer base or for other strategic purposes. We have no prior history of
making acquisitions and we cannot assure you that any future acquisitions will
be successful. The following are some of the risks associated with
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acquisitions that could have a material adverse effect on our business,
financial condition or results of operations:
- We cannot ensure that any acquired businesses will achieve anticipated
revenues, earnings or cash flow.
- We may be unable to integrate acquired businesses successfully and realize
anticipated economic, operational and other benefits in a timely manner,
particularly if we acquire a business in a market in which we have limited
or no current expertise, or with a corporate culture different from our
own. If we are unable to integrate acquired businesses successfully, we
could incur substantial costs and delays or other operational, technical
or financial problems.
- Acquisitions could disrupt our ongoing business, distract management,
divert resources and make it difficult to maintain our current business
standards, controls and procedures.
- We may finance future acquisitions by issuing common stock for some or all
of the purchase price. This could dilute the ownership interests of our
stockholders. We may also incur additional debt or be required to
recognize amortization expense related to goodwill and other intangible
assets purchased in future acquisitions.
- We would be competing with other firms, many of which have greater
financial and other resources, to acquire attractive companies. We believe
this competition will increase, making it more difficult to acquire
suitable companies on acceptable terms.
OUR INTERNATIONAL OPERATIONS AND EXPANSION INVOLVE FINANCIAL AND OPERATIONAL
RISKS
The expansion of our international operations will require significant
management attention and financial resources to establish additional foreign
operations, hire additional personnel and recruit additional international
resellers. Non-North American revenues accounted for 17% of our total revenues
in 1997, 16% of our total revenues in 1998 and 20% of our total revenues in the
first half of 1999. To date, our products have been licensed outside North
America primarily in Western Europe, South Africa and Australia. We are
currently expanding our marketing efforts in Japan, Korea, China and Central and
South America. We intend to continue to expand our international operations and
enter additional international markets. Revenues from international expansion
may be inadequate to cover the expenses of international expansion. In addition
to the foreign currency risks described below, other risks inherent in our
international business activities, in the countries in which we have licensed
our products to date and in those countries in which we intend to expand,
generally could include the following:
- economic and political instability;
- unexpected changes in foreign regulatory requirements and laws;
- tariffs and other trade barriers;
- timing, cost and potential difficulty of adapting our software products to
the local language in those foreign countries that do not use the alphabet
that English uses, such as Japan, Korea and China;
- lack of acceptance of our products in foreign countries;
- longer sales cycles and accounts receivable payment cycles;
- potentially adverse tax consequences; and
- restrictions on the repatriation of funds.
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FLUCTUATIONS IN THE VALUE OF FOREIGN CURRENCIES COULD RESULT IN LOSSES
Our international revenues are generally denominated in U.S. Dollars, but
our international expenses are generally denominated in local foreign
currencies. Although foreign currency translation gains and losses have been
immaterial to date, fluctuations in exchange rates between the U.S. Dollar and
other currencies could have a material adverse effect on our business, financial
condition or results of operations, and particularly on our operating margins.
To date, we have not sought to hedge the risks associated with fluctuations in
exchange rates, but we may undertake to do so in the future. Any hedging
techniques we implement in the future may not be successful. Exchange rate
fluctuations could also make our products more expensive than competitive
products not subject to these fluctuations, which could adversely affect our
revenues and profitability in international markets.
OUR PRODUCTS COULD HAVE DEFECTS FOR WHICH WE ARE POTENTIALLY LIABLE AND WHICH
COULD RESULT IN LOSS OF REVENUE, INCREASED COSTS OR LOSS OF OUR CREDIBILITY OR
DELAY IN ACCEPTANCE OF OUR PRODUCTS IN THE MARKET
Our products, including components supplied by others, may contain errors or
defects, especially when first introduced or when new versions are released.
Despite internal product testing, we have in the past discovered software errors
in some of our products after their introduction. Errors in new products or
releases could be found after commencement of commercial shipments, and this
could result in additional development costs, diversion of technical and other
resources from our other development efforts, or the loss of credibility with
current or future end-user customers. This could result in a loss of revenue or
delay in market acceptance of our products, which could have a material adverse
effect upon our business, financial condition or results of operations. We are
releasing EIC Version 1.3 during July 1999, as described in
"Business--Products."
Our license agreements with our end-user customers typically contain
provisions designed to limit our exposure to potential product liability and
some contract claims. However, not all of these agreements contain these types
of provisions and, where present, these provisions vary as to their terms and
may not be effective under the laws of some jurisdictions. A product liability,
warranty, or other claim brought against us could have a material adverse effect
on our business, financial condition or results of operations.
Because our solution consists of our software running on a Windows
NT-Registered Trademark- server and Dialogic Corporation voice processing
boards, it is inherently more prone to performance interruptions for our
end-user customers than traditional non-software based products. Performance
interruptions at our end-user customer sites, most of which currently do not
have back-up systems, could affect demand for our products or give rise to
claims against us.
YEAR 2000 ISSUES MAY ADVERSELY AFFECT OUR BUSINESS
In the course of our business, we test and evaluate our software products
for Year 2000 compliance. Based on this testing and evaluation, we believe that
the current versions of our products are capable of adequately distinguishing
21st century dates from 20th century dates. We have warranted that all of our
current products are Year 2000 compliant. If any of our end-user customers
experience Year 2000 problems as a result of their use of our products, those
end-user customers could assert claims against us for damages which, if
successful, could materially adversely affect our business, financial condition
or results of operations. In addition, many of our products have third-party
technologies embedded in them, and our products at times are integrated into
enterprise systems involving sophisticated hardware and complex software
products. We cannot adequately evaluate these technologies or products for Year
2000 compliance. Our two material suppliers have not warranted that their
products which could impact the performance of our products are Year 2000
compliant. Our most reasonably likely worst case scenario is that we could lose
current or potential customers, incur costs related to replacing third party
products or face claims under our warranties, or otherwise, based on
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Year 2000 problems in other companies' products, or issues arising from the
integration of multiple products within an overall system, any of which could
have a material adverse effect on our business, financial condition or results
of operations. Since we are in the business of selling software, our risk of
facing claims relating to Year 2000 issues is greater than that of companies in
some other industries.
We are in the process of testing our internal management information and
other critical business systems to identify any Year 2000 problems. We have also
begun to contact key suppliers and intend to contact our key resellers about
their Year 2000 readiness. To date, we are not aware of any material suppliers
or resellers with Year 2000 issues that would materially affect us. However, we
cannot guarantee that the systems of other companies on which our operations
rely will be timely converted or that failure to timely convert would not have a
material adverse effect on us.
We believe that the purchasing patterns of end-user customers and potential
end-user customers may be affected by Year 2000 issues as companies expend
significant resources to correct or upgrade their current software systems for
Year 2000 compliance. These expenditures may reduce the funds available to
license software products such as those we offer. To the extent Year 2000 issues
significantly disrupt decisions to license our products or purchase our
services, our business, financial condition or results of operations could be
materially adversely affected.
For a more detailed description of our Year 2000 assessment, see
"Management's Discussion and Analysis of Financial Condition and Results of
Operations--Year 2000 Compliance."
WE MAY NOT BE ABLE TO OBTAIN ADEQUATE FINANCING TO IMPLEMENT OUR GROWTH STRATEGY
Successful implementation of our growth strategy will likely require
continued access to capital. If we do not generate sufficient cash from
operations, our growth could be limited unless we are able to obtain capital
through additional debt or equity financings. We cannot assure you that debt or
equity financings will be available as required for acquisitions or other needs.
Even if financing is available, it may not be on terms that are favorable to us
or sufficient for our needs. If we are unable to obtain sufficient financing, we
may be unable to fully implement our growth strategy.
NO PRIOR PUBLIC MARKET HAS EXISTED FOR OUR SHARES AND AN ACTIVE TRADING MARKET
MAY NOT DEVELOP OR BE SUSTAINED
Before this offering, there has been no public market for our common stock.
We cannot assure you that an active trading market will develop or be sustained
after this offering. You may not be able to resell your shares at or above the
initial public offering price. The initial public offering price will be
determined through negotiations between the underwriters and us. See
"Underwriting."
OUR STOCK PRICE COULD BE HIGHLY VOLATILE
Our stock price could be highly volatile due to a number of factors,
including:
- actual or anticipated fluctuations in our operating results;
- announcements by us, our competitors or our end-user customers;
- changes in financial estimates of securities analysts or investors
regarding us, our industry, our competitors or our end-user customers;
- technological innovations by others;
- the operating and stock price performance of other comparable companies or
of our competitors or end-user customers; and
- general market or economic conditions.
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This risk may be heightened because our industry is new and evolving,
characterized by rapid technological change and susceptible to the introduction
of new competing technologies or competitors.
In addition, the stock market has experienced significant price and volume
fluctuations that have particularly affected the trading prices of equity
securities of many technology companies. These price and volume fluctuations
often have been unrelated to the operating performance of the affected
companies. In the past, following periods of volatility in the market price of a
company's securities, securities class action litigation has often been
instituted against that company. This type of litigation, regardless of the
outcome, could result in substantial costs and a diversion of management's
attention and resources, which could materially and adversely affect our
business, financial condition or results of operations.
AVAILABILITY OF SIGNIFICANT AMOUNTS OF COMMON STOCK FOR SALE IN THE FUTURE COULD
ADVERSELY AFFECT OUR STOCK PRICE
The availability for future sale, or sales, of a substantial number of
shares of our common stock in the public market or otherwise following this
offering could adversely affect the market price for our common stock. See
"Shares Eligible for Future Sale" for information regarding the number of shares
of common stock eligible for public sale after this offering.
OUR EXECUTIVE OFFICERS AND DIRECTORS CONTROL US AND MAY MAKE DECISIONS THAT YOU
DO NOT CONSIDER TO BE IN YOUR BEST INTEREST
Immediately after this offering, our executive officers and directors will,
in the aggregate, hold approximately 72.2% of our outstanding common stock.
Accordingly, these stockholders will be able to control us through their ability
to determine the outcome of the election of our directors, amend our Restated
Articles of Incorporation and By-Laws and take other actions requiring the vote
or consent of stockholders, including mergers, going private transactions and
other extraordinary transactions, and the terms of any of these transactions.
The ownership position of these stockholders may have the effect of delaying,
deterring or preventing a change in control or a change in the composition of
our board of directors. See "Principal and Selling Stockholders" for information
concerning the beneficial ownership of our common stock.
ANTITAKEOVER PROVISIONS IN OUR ORGANIZATIONAL DOCUMENTS AND INDIANA LAW MAKE ANY
CHANGE IN CONTROL OF US MORE DIFFICULT, MAY DISCOURAGE BIDS AT A PREMIUM OVER
THE MARKET PRICE AND MAY ADVERSELY AFFECT THE MARKET PRICE OF OUR STOCK
Our Restated Articles of Incorporation and By-Laws contain provisions that
may have the effect of delaying, deferring or preventing a change in control of
us, may discourage bids at a premium over the market price of our common stock
and may adversely affect the market price of our common stock, and the voting
and other rights of the holders of our common stock. These provisions include:
- the division of our board of directors into three classes serving
staggered three-year terms;
- removal of directors only for cause and only upon a 66 2/3% stockholder
vote;
- prohibiting stockholders from calling a special meeting of stockholders;
- the ability to issue additional shares of our common stock or preferred
stock without stockholder approval; and
- advance notice requirements for raising business or making nominations at
stockholders' meetings.
The Indiana corporation law contains business combination provisions that,
in general, prohibit for five years any business combination with a beneficial
owner of 10% or more of our common stock
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unless the holder's acquisition of the stock was approved in advance by our
board of directors. The Indiana corporation law also contains control share
acquisition provisions that limit the ability of certain stockholders to vote
their shares unless their control share acquisition was approved in advance. See
"Description of Capital Stock" for a description of these provisions.
WE MAY BE UNABLE TO MANAGE SIGNIFICANT UNALLOCATED NET PROCEEDS FROM THIS
OFFERING EFFECTIVELY WHICH COULD ADVERSELY AFFECT THE MARKET PRICE OF OUR COMMON
STOCK
We will have a significant amount of net proceeds from this offering that we
have not allocated to a specific use. The failure of management to apply these
proceeds effectively could materially and adversely affect our business,
financial condition or results of operations and, therefore, the market price of
our common stock. We will use a portion of the net proceeds of this offering to
repay all indebtedness, including accrued interest, owed to our principal
stockholder, and to pay deferred compensation and other non-interest bearing
accounts payable to him, which amounts totaled approximately $7.9 million as of
June 30, 1999. We have not designated any specific uses for the remaining net
proceeds of this offering. Therefore, we will have broad discretion in how we
use the net proceeds of this offering, which may include general corporate
purposes, such as working capital and potential acquisitions. See "Use of
Proceeds."
INVESTORS WILL INCUR IMMEDIATE DILUTION AND MAY EXPERIENCE FURTHER DILUTION
The assumed initial public offering price is substantially higher than the
net tangible book value per share of the outstanding common stock immediately
after this offering, which was a deficit of $0.75 per share as of June 30, 1999.
If you purchase our common stock in this offering, you will incur immediate and
substantial dilution in the net tangible book value per share of common stock
from the price you pay per share of common stock. We also have outstanding a
large number of stock options to purchase common stock with exercise prices
significantly below the assumed initial public offering price of the common
stock. To the extent these options are exercised, there will be further
dilution. We intend to continue to grant stock options to our employees as part
of our general compensation practices. See "Dilution."
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USE OF PROCEEDS
We expect to receive approximately $29.1 million from the sale of the
2,670,000 shares of common stock offered by us at an assumed initial public
offering price of $12.00 per share, after deducting the underwriting discounts
of $2.2 million and estimated expenses of $650,000 to be paid by us. We expect
to receive an additional $3.7 million of net proceeds if the underwriters
exercise their overallotment options in full. We will not receive any proceeds
from the sale of common stock by the selling stockholder.
We intend to use the net proceeds of this offering:
- for general corporate purposes, including working capital and potential
acquisitions;
- to repay indebtedness under our lines of credit which aggregated
approximately $1.1 million at June 30, 1999;
- to repay indebtedness of approximately $7.3 million, including accrued
interest, that we owe to our principal stockholder, Dr. Donald E. Brown,
which was advanced for working capital purposes, has an interest rate of
10% and matures on December 31, 2001; and
- to pay approximately $0.6 million in deferred compensation to Dr. Brown
for services rendered as our Chief Executive Officer and other
non-interest bearing accounts payable to him. Dr. Brown elected to defer
his compensation and not seek reimbursment of these accounts payable to
conserve our cash position before this offering.
Pending these uses, we expect to invest the net proceeds from this offering in
short-term investment grade, interest-bearing securities. While we engage in
discussions relating to potential acquisitions from time to time, we have
entered into no agreements with respect to these transactions.
DIVIDEND POLICY
We have never paid cash dividends on our common stock. We do not anticipate
that we will pay any cash dividends on our common stock in the foreseeable
future and we plan to retain our earnings to finance operations and future
growth. The declaration and payment of dividends on our common stock will be at
the discretion of our board of directors and must comply with applicable law and
any restrictions in our credit facilities. Any decisions to pay dividends in the
future will depend on general business conditions, our financial condition and
other factors our board of directors may in the future consider to be relevant.
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CAPITALIZATION
The following table sets forth our actual capitalization as of June 30,
1999, and our capitalization as adjusted to reflect our receipt and application
of the estimated net proceeds, at an assumed initial public offering price of
$12.00 per share, from the sale of the shares of common stock offered by us in
this prospectus. You should read this table with the financial statements and
the notes to the financial statements and "Management's Discussion and Analysis
of Financial Condition and Results of Operations" included elsewhere in this
prospectus.
<TABLE>
<CAPTION>
JUNE 30, 1999
-----------------------
ACTUAL AS ADJUSTED
---------- -----------
(UNAUDITED)
(DOLLARS IN THOUSANDS)
<S> <C> <C>
Short-term debt:
Lines of credit........................................................................ $ 1,055 $ --
---------- -----------
---------- -----------
Long-term debt:
Accounts payable and deferred compensation--stockholder................................ $ 550 $ --
Notes payable and accrued interest--stockholder........................................ 7,346 --
Capital lease obligations.............................................................. 627 627
---------- -----------
8,523 627
Stockholders' equity (deficit):
Preferred stock, without par value, 10,000,000 shares authorized, none outstanding,
actual and as adjusted............................................................... -- --
Common stock, $.01 par value; 100,000,000 shares authorized, 10,700,121 shares issued
and outstanding, actual; 13,370,121 shares issued and outstanding, as adjusted....... 107 134
Additional paid in capital............................................................. 10,739 39,859
Accumulated deficit.................................................................... (18,843) (18,843)
---------- -----------
Total stockholders' equity (deficit)................................................. (7,997) 21,150
---------- -----------
Total capitalization............................................................... $ 526 $ 21,777
---------- -----------
---------- -----------
</TABLE>
19
<PAGE>
DILUTION
As of June 30, 1999, our net tangible book value (deficit) was $(8.0)
million or $(0.75) per share of common stock. "Net tangible book value
(deficit)" per share represents the amount of our total tangible assets reduced
by the amount of our total liabilities, divided by the number of shares of
common stock outstanding. As of June 30, 1999, our net tangible book value
(deficit), on a pro forma basis as adjusted for the sale of the shares offered
by us in this offering at an assumed initial public offering price of $12.00 per
share and the application of the estimated net proceeds from that sale of
approximately $29.1 million, would have been $21.2 million, or approximately
$1.59 per share. This represents an immediate increase of $2.34 per share to
existing stockholders and an immediate dilution of $10.41 per share to new
investors. The following table illustrates this per share dilution:
<TABLE>
<S> <C> <C>
Assumed initial public offering price per share.................... $ 12.00
Net tangible book value (deficit) per share as of June 30,
1999........................................................... $ (0.75)
Increase per share attributable to new investors................. 2.34
-----------
Pro forma net tangible book value (deficit) per share after this
offering......................................................... 1.59
-----------
Dilution per share to new investors................................ $ 10.41
-----------
-----------
</TABLE>
The following table summarizes as of June 30, 1999 the differences between
the total consideration paid and the average price per share paid by the
existing stockholders and the new investors with respect to the number of shares
of common stock purchased from us assuming an initial public offering price of
$12.00 per share.
<TABLE>
<CAPTION>
SHARES PURCHASED TOTAL CONSIDERATION
------------------------- -------------------------- AVERAGE PRICE
NUMBER PERCENT AMOUNT PERCENT PER SHARE
------------ ----------- ------------- ----------- -------------
<S> <C> <C> <C> <C> <C>
Existing stockholders................. 10,700,121 80.0% $ 10,846,000 25.3% $ 1.01
New investors......................... 2,670,000 20.0 32,040,000 74.7 12.00
------------ ----- ------------- -----
Total............................... 13,370,121 100.0% $ 42,886,000 100.0% $ 3.21
------------ ----- ------------- -----
------------ ----- ------------- -----
</TABLE>
If the underwriters exercise their over-allotment options in full, the
resulting sale of shares by the selling stockholder in this offering would
reduce the number of shares held by existing stockholders to 10,630,121 shares,
or approximately 77.6% of the total number of shares of common stock to be
outstanding after this offering, and would increase the number of shares held by
new investors to 3,070,500 shares, or approximately 22.4% of the total number of
shares of common stock to be outstanding after this offering.
20
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA
In the table below, we provide selected consolidated financial data of
Interactive Intelligence. We prepared this information using our unaudited
consolidated financial statements for the period from October 1, 1994
(inception) through December 31, 1994 and the six-month periods ended June 30,
1998 and 1999 and from our audited consolidated financial statements for each of
the years in the four-year period ended December 31, 1998. You should read this
selected consolidated financial data together with our consolidated financial
statements and notes and "Management's Discussion and Analysis of Financial
Condition and Results of Operations" included in this prospectus. In our
opinion, our selected consolidated financial data for the period from October 1,
1994 (inception) through December 31, 1994 and the six-month periods ended June
30, 1998 and 1999 include all adjustments, consisting of only normal recurring
adjustments, necessary for a fair presentation of that data. The selected
consolidated financial data do not necessarily indicate the results to be
expected in the future.
<TABLE>
<CAPTION>
SIX MONTHS
OCTOBER 1, 1994 YEAR ENDED DECEMBER 31, ENDED JUNE 30,
(INCEPTION) TO --------------------------------- ---------------------
DECEMBER 31, 1994 1995 1996 1997 1998 1998 1999
----------------- ------ ------- ------- ------- ------- ------------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
CONSOLIDATED STATEMENT OF
OPERATIONS DATA:
Revenues:
Software......................... $ -- $ -- $ -- $ 1,265 $ 7,662 $ 2,980 $ 5,482
Services......................... -- -- -- 325 1,349 407 1,826
------ ------ ------- ------- ------- ------- ------------
Total revenues..................... -- -- -- 1,590 9,011 3,387 7,308
Costs and expenses:
Costs of software................ -- -- -- 38 59 24 60
Costs of services................ -- -- -- 1,258 3,381 1,387 2,360
Sales and marketing.............. -- 19 157 2,519 6,623 2,715 4,553
Research and development......... 8 297 987 2,118 4,065 1,837 3,004
General and administrative....... -- 99 192 742 1,407 590 1,135
------ ------ ------- ------- ------- ------- ------------
Total costs and expenses........... 8 415 1,336 6,675 15,535 6,553 11,112
------ ------ ------- ------- ------- ------- ------------
Operating loss..................... (8) (415) (1,336) (5,085) (6,524) (3,166) (3,804)
Interest expense, net.............. -- 1 43 361 868 428 398
------ ------ ------- ------- ------- ------- ------------
Loss before income taxes........... (8) (416) (1,379) (5,446) (7,392) (3,594) (4,202)
Income taxes....................... -- -- -- -- -- -- --
------ ------ ------- ------- ------- ------- ------------
Net loss........................... $ (8) $ (416) $(1,379) $(5,446) $(7,392) $(3,594) $(4,202)
------ ------ ------- ------- ------- ------- ------------
------ ------ ------- ------- ------- ------- ------------
Basic and diluted net loss per
share............................ $(0.01) $(0.21) $ (0.33) $ (0.71) $ (0.84) $ (0.44) $ (0.40)
Shares used in per share
computation...................... 1,500 1,966 4,216 7,642 8,816 8,203 10,538
<CAPTION>
AT DECEMBER 31,
------------------------------------------ AT JUNE 30,
1994 1995 1996 1997 1998 1999
------ ------- ------- ------- ------- ------------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
CONSOLIDATED BALANCE SHEET DATA:
Cash and cash equivalents........ $ 11 $ 51 $ 23 $ 390 $ 2,021 $ 87
Working capital (deficit)........ (4) 26 (544) (1,575) 1,731 (3,167)
Total assets..................... 32 133 438 3,141 8,239 7,798
Long-term debt................... -- -- 593 5,872 9,490 8,523
Total shareholders' equity
(deficit)...................... 18 107 (803) (6,217) (5,154) (7,997)
</TABLE>
21
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
This section includes a number of forward-looking statements that reflect
our current views with respect to future events and financial performance. See
"Forward-Looking Statements."
OVERVIEW
We commenced operations in October 1994. Through the end of 1996, we focused
primarily on research and development activities. EIC was released in March
1997. In 1997 and 1998, we expanded our operations to capitalize on the
increased market demand for communications and interaction management software.
We decided, at the expense of profitability, to continue investing significantly
in research and development, and to accelerate our investments in marketing,
services and sales operations. We had no revenue in 1996, and our revenues
totaled $1.6 million in 1997 and $9.0 million in 1998. Since early 1997, we
have:
- hired more than 140 employees;
- established relationships with over 100 North American and international
resellers;
- located field sales personnel in 16 North American locations to support
and manage our reseller network and entered the European and Asia/Pacific
markets by locating personnel in France, the Netherlands, the United
Kingdom, Japan and Korea;
- released local language versions of EIC in French, German, Italian,
Japanese, Korean and Norwegian;
- released two upgrades to EIC, with another upgrade intended to be released
in July 1999;
- released an additional complementary software product, Interaction
Recorder; and
- developed and currently are testing two additional complementary software
products, Interaction Dialer and Interaction Director.
We believe our investments in research and development and in marketing,
services and sales operations will continue to be critical to our revenue
growth. However, these investments have also significantly increased our
operating expenses, contributing to the net and operating losses that we have
incurred in each fiscal quarter since our formation. We anticipate that our
operating expenses will increase substantially for the foreseeable future as we
continue to expand our research and development, marketing, services and sales
operations. Accordingly, we are likely to continue to experience losses and
negative cash flows from operations in future quarters. We cannot assure you
when or if we will achieve profitability or, if achieved, that we will be able
to sustain profitability. Our operating results have varied significantly from
quarter to quarter and may continue to do so in the future. As a result, we
believe that period-to-period comparisons of our operating results are not
necessarily meaningful, and you should not rely on them as an indication of our
future performance. See "Risk Factors."
SOURCES OF REVENUE AND REVENUE RECOGNITION POLICY
We generate a majority of our revenues from software license fees. Most of
our software license fees originate from the marketing efforts of our resellers,
who are authorized to place software orders with us on behalf of end-user
customers. We share end-user customer software license fees with these resellers
in varying percentages of our list price, according to the terms of their
reseller agreements. In addition to generating software license fees indirectly
through resellers, we also receive some software license fees from end-user
customers that we deal with directly.
22
<PAGE>
In accordance with AICPA Statement of Position (SOP) 97-2 as amended by SOP
98-4 and SOP 98-9, software license revenues can be recognized upon the shipment
of software if:
- persuasive evidence of an arrangement exists;
- sufficient vendor-specific objective evidence exists to support allocating
the total fee to all elements of the arrangement;
- the fee is fixed or determinable; and
- collection is probable.
As a result, we typically recognize software license fees only when a reseller
places a binding order for our software, which gives the reseller the right to
distribute our products to end-user customers.
We also generate revenues from services that we provide to our resellers and
end-user customers. Services revenues include product maintenance revenues,
which consist of technical support and product upgrades, educational services
and professional services. Our initial software license generally includes one
year of maintenance. Generally, to continue using our software after this
initial period, our end-user customers must purchase annual ongoing product
maintenance, which is priced at approximately 18% of the current list price of
the licensed product. We share maintenance revenues with those resellers who
provide first-level technical support according to the terms of their reseller
agreements. When these revenues are shared with resellers, we typically receive
between 50% and 70% of the amount charged to the end-user customer. We recognize
product maintenance revenues on a straight-line basis over the term of the
initial software license and each subsequent annual product maintenance
purchase. Revenues from educational services, which consist of training courses
for resellers and end-user customers, and professional services, which include
implementing and customizing our products for an end-user customer, are
typically recognized as the related services are performed.
In 1997, no end-user customer accounted for 10% or more of our revenues,
though one reseller accounted for 17% of our revenues. At December 31, 1997, six
resellers represented approximately 55% of our outstanding accounts receivable
balance. In 1998, no end-user customer or reseller accounted for 10% or more of
our revenues. At December 31, 1998, six resellers represented approximately 41%
of our outstanding accounts receivable balance. For the six months ended June
30, 1999, no end-user customer or reseller accounted for 10% or more of our
revenues. At June 30, 1999, six resellers represented approximately 36% of our
outstanding accounts receivable balance. A significant number of resellers added
over the past year are non-North American and our average contract size has
increased. We believe that the allowance for doubtful accounts at June 30, 1999
is reasonable given the rapid expansion of our business, the recent non-North
American influence on our expansion and the increase in the average size of our
contracts. See Note 7 of our notes to consolidated financial statements.
23
<PAGE>
HISTORICAL RESULTS OF OPERATIONS
The following table sets forth, for the periods indicated, our consolidated
financial information expressed as a percentage of total revenues.
<TABLE>
<CAPTION>
SIX MONTHS
YEAR ENDED DECEMBER 31, ENDED JUNE 30,
------------------------------------- ------------------------
1996 1997 1998 1998 1999
----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Revenues:
Software......................................................... -- 80% 85% 88% 75%
Services......................................................... -- 20 15 12 25
--- --- --- --- ---
Total revenues..................................................... -- 100 100 100 100
Costs and expenses:
Costs of software................................................ -- 2 1 1 1
Costs of services................................................ -- 79 37 41 32
Sales and marketing.............................................. * 159 73 80 62
Research and development......................................... * 133 45 54 41
General and administrative....................................... * 47 16 17 16
--- --- --- --- ---
Total costs and expenses........................................... * 420 172 193 152
--- --- --- --- ---
Operating loss..................................................... * (320) (72) (93) (52)
Interest expense, net.............................................. * 23 10 13 5
--- --- --- --- ---
Loss before income taxes........................................... * (343) (82) (106) (57)
Income taxes....................................................... * -- -- -- --
--- --- --- --- ---
Net loss........................................................... * (343)% (82)% (106)% (57)%
--- --- --- --- ---
--- --- --- --- ---
</TABLE>
- ------------------------
* Not a meaningful number because no revenues were recognized in 1996.
COMPARISON OF SIX MONTHS ENDED JUNE 30, 1998 AND 1999
REVENUES
Our total revenues increased 115% from $3.4 million for the six months ended
June 30, 1998 to $7.3 million for the six months ended June 30, 1999. Non-North
American revenues were $247,000 for the six months ended June 30, 1998 and $1.5
million for the six months ended June 30, 1999. The increase in total revenues
resulted primarily from significant increases in the number of software licenses
and, to a lesser extent, professional services and product maintenance revenues.
We anticipate that software revenues will continue to represent the majority of
our revenues for the foreseeable future.
SOFTWARE. Our software revenues increased 83% from $3.0 million for the six
months ended June 30, 1998 to $5.5 million for the six months ended June 30,
1999. This increase in software revenues resulted from a significantly higher
number of software licenses as a result of the continued market acceptance of
EIC, product enhancements and a broader geographic presence as a result of the
establishment of sales offices in Europe and the Asia/Pacific region. In
addition, the number of additional licenses to existing end-user customers has
also increased.
SERVICES. Services revenues increased from $407,000 for the six months
ended June 30, 1998 to $1.8 million for the six months ended June 30, 1999. This
increase in services revenues resulted primarily from an increase in product
maintenance revenues, which grew significantly due to our expanding installed
base of end-user customers. In addition, our recently established professional
services organization generated increased implementation and customization
revenues from services
24
<PAGE>
provided to our resellers and end-user customers. Also, demand for training from
both existing and new resellers and, to a lesser extent, end-user customers
translated into increasing education revenues.
COSTS AND EXPENSES
As a percentage of total revenues, our total costs and expenses decreased
from 193% for the six months ended June 30, 1998 to 152% for the six months
ended June 30, 1999. This decrease resulted primarily from revenues increasing
faster than expenses. Our total costs and expenses primarily reflect our
investments in research and development, marketing, sales and services efforts.
Our total costs and expenses increased from $6.6 million for the six months
ended June 30, 1998 to $11.1 million for the six months ended June 30, 1999. The
increase in total costs and expenses resulted from substantial investments in
these efforts.
COSTS OF SOFTWARE. Costs of software consist primarily of product royalties
paid to third-parties for the use of their technologies in our products. Costs
of software increased from $24,000 for the six months ended June 30, 1998 to
$60,000 for the six months ended June 30, 1999, representing 1% of software
revenues in both periods. The increase resulted primarily from an increase in
the number of end-user customers and related software licenses.
COSTS OF SERVICES. Costs of services consist primarily of compensation
expenses for technical support, education and professional services personnel
and other costs associated with supporting our resellers and end-user customers.
Costs of services increased from $1.4 million for the six months ended June 30,
1998 to $2.4 million for the six months ended June 30, 1999. This represents
341% of service revenues for the six months ended June 30, 1998 and 129% of
service revenues for the six months ended June 30, 1999. The increase in amount
was due to a concentrated effort to maximize both reseller effectiveness and
end-user customer satisfaction through the growth of our technical support,
education and professional services organizations.
SALES AND MARKETING. Sales and marketing expenses consist primarily of
marketing expenses, including trade shows, public relations, telemarketing
campaigns and other promotional expenses, compensation expenses, including
commissions, and travel expenses. Sales and marketing expenses increased from
$2.7 million for the six months ended June 30, 1998 to $4.6 million for the six
months ended June 30, 1999. The increase in amount reflects the hiring of
additional North American, European and Asia-Pacific sales and marketing
personnel and expanded marketing activities.
RESEARCH AND DEVELOPMENT. Research and development expenses consist
primarily of compensation expenses for our developers and, to a lesser extent,
third-party efforts to adapt our products for specific countries. Research and
development expenses increased from $1.8 million for the six months ended June
30, 1998 to $3.0 million for the six months ended June 30, 1999. Currently, all
costs related to research and development of our products are charged to
research and development expense as incurred. The increase in research and
development expenses related primarily to the addition of software developers
required to enhance existing products and develop related products, and
third-party efforts to adapt our products for the Japanese and Korean markets.
GENERAL AND ADMINISTRATIVE. General and administrative expenses consist
primarily of compensation for our administrative, financial and information
technology personnel and a number of non-allocable costs, including bad debts
and professional service fees, such as legal and accounting fees. General and
administrative expenses increased from $590,000 for the six months ended June
30, 1998 to $1.1 million for the six months ended June 30, 1999. The increase
resulted primarily from the addition of personnel to support the growth of our
business and an increased amount of professional service fees.
25
<PAGE>
INTEREST EXPENSE, NET
Interest expense, net is generated primarily from debt owed to our principal
stockholder and, to a
lesser extent, from various commercial lines of credit and capital lease lines
of credit. Interest expense, net was $428,000 for the six months ended June 30,
1998 and $398,000 for the six months ended June 30, 1999. The amount of interest
expense decreased due to a lesser amount of debt outstanding during 1999.
INCOME TAXES
For the six months ended June 30, 1998, we were an S-corporation. As an
S-corporation, any tax benefit flowed through to our stockholders. We were a
C-corporation during the six months ended June 30, 1999, but we did not
recognize a tax benefit during that period because of the uncertainty of
eventually realizing these benefits. See Note 9 of our notes to consolidated
financial statements.
COMPARISON OF FISCAL YEARS ENDED DECEMBER 31, 1996, 1997 AND 1998
REVENUES
Our total revenues increased from none in 1996 to $1.6 million in 1997 and
$9.0 million in 1998. Non-North American revenues were $292,000 in 1997 and $1.4
million in 1998. We do not believe that the percentage increases in revenues
achieved in prior periods should be anticipated in future periods. We anticipate
that software revenues will continue to represent a majority of our revenues for
the foreseeable future.
SOFTWARE. Our software revenues increased from none in 1996 to $1.3 million
in 1997 and $7.7 million in 1998. The increase in software revenues from 1996 to
1997 resulted primarily from the release of our first product, EIC, and our
initial North American sales efforts. The increase in software revenues from
1997 to 1998 resulted from a growing market acceptance of EIC, our growing sales
and marketing efforts and product-related functional and performance
enhancements.
SERVICES. Services revenues increased from none in 1996 to $325,000 in 1997
and $1.3 million in 1998. The increase in services revenues from 1996 to 1998
resulted primarily from the growth in maintenance revenues as our installed
customer base increased over the two-year period. In addition, we established
our educational services in 1997 and our professional services in 1998. The
establishment of these services has translated into an increasing amount of
revenues over the two-year period. We expect product maintenance revenues, which
account for a majority of our services revenues, to increase substantially for
the foreseeable future, primarily as a result of our growing installed customer
base. We also expect education and professional revenues to increase, primarily
as a result of increased reseller demand for technical and sales training and
the growth of our internal professional services group.
COSTS AND EXPENSES
As a percentage of total revenues, our costs and expenses decreased from
420% in 1997 to 172% in 1998. This decrease resulted primarily from revenues
increasing faster than expenses. Our total costs and expenses increased from
$1.3 million in 1996 to $6.7 million in 1997 and $15.5 million in 1998,
primarily reflecting substantial increases in investments in our research and
development, marketing, sales and services efforts over the two-year period.
These investments included headcount additions of 48 employees in 1997 and 60
employees in 1998.
COSTS OF SOFTWARE. Costs of software increased from none in 1996 to $38,000
in 1997 and $59,000 in 1998, representing 3% of software revenues in 1997 and 1%
of software revenues in 1998. The increases in amount from 1996 to 1998 resulted
primarily from our growing end-user customer base.
26
<PAGE>
We expect product royalties to grow as software revenues continue to increase
and we integrate additional third-party functions and features into our product
offerings.
COSTS OF SERVICES. Costs of services increased from none in 1996 to $1.3
million in 1997 and $3.4 million in 1998. The increases from 1996 to 1998
reflect the hiring of additional technical support, education and field services
personnel in excess of related revenues. We expect to make continued investments
in our service organizations to support our end-user customer base and
resellers. However, we expect that costs of services will increase at a slower
rate than services revenues.
SALES AND MARKETING. Sales and marketing increased from $157,000 in 1996 to
$2.5 million in 1997 and $6.6 million in 1998. The increases in sales and
marketing expenses from 1996 to 1998 resulted primarily from our initial and
ongoing investment in sales and marketing personnel. This investment included
the establishment of the initial North American field sales offices in 1997 and
European and Asian/Pacific region sales offices in 1998. In addition, we
increased our marketing activities, including tradeshows, public relations
activities and advertisements, over the two-year period. We currently plan to
continue investing significantly in sales and marketing efforts.
RESEARCH AND DEVELOPMENT. Research and development expenses increased from
$1.0 million in 1996 to $2.1 million in 1997 and $4.1 million in 1998. The
increases in research and development expenses from 1996 to 1998 related
primarily to the increase in software developers and testing personnel to
develop and enhance EIC and related products. We believe that our significant
investment in research and development has been critical to our market
acceptance to date and will continue to be so in the future.
GENERAL AND ADMINISTRATIVE. General and administrative expenses increased
from $192,000 in 1996 to $742,000 in 1997 and $1.4 million in 1998. The
increases from 1996 to 1998 were primarily due to the addition of personnel
necessary to support our growing operations. We believe our general and
administrative expenses will continue to increase as we expand our
administrative infrastructure and incur expenses associated with becoming a
public company.
INTEREST EXPENSE, NET
Interest expense, net was $43,000 in 1996, $361,000 in 1997 and $868,000 in
1998. The increases from 1996 to 1998 resulted primarily from significant
increases in debt payable to our principal stockholder, various commercial lines
of credit and the interest portion of capital leases. See Notes 3 and 4 of our
notes to consolidated financial statements.
INCOME TAXES
We were an S-corporation until November 5, 1998. As an S-corporation, any
tax benefit flowed through to our stockholders. As a result, we did not realize
any tax benefit from our net losses through November 5, 1998. We were a
C-corporation for approximately two months in 1998, but we did not recognize a
tax benefit because of the uncertainty of eventually realizing these benefits.
See Note 9 of our notes to consolidated financial statements.
27
<PAGE>
QUARTERLY RESULTS OF OPERATIONS
The following table sets forth, for the periods indicated, our consolidated
financial information for the last nine quarters expressed in dollars and as a
percentage of total revenues. We prepared this information using our unaudited
interim consolidated financial statements that, in our opinion, have been
prepared on a basis consistent with our annual consolidated financial
statements. We believe that these interim statements include all adjustments,
consisting only of normal recurring adjustments, necessary for a fair
presentation of this information when read in conjunction with our consolidated
financial statements and the notes to those financial statements. The operating
results for any quarter do not necessarily indicate the results to be expected
for any future period.
<TABLE>
<CAPTION>
QUARTER ENDED
-----------------------------------------------------------------------------------------------------
JUNE 30, SEPT. 30, DEC. 31, MARCH 31, JUNE 30, SEPT. 30, DEC. 31, MARCH 31, JUNE 30,
1997 1997 1997 1998 1998 1998 1998 1999 1999
-------- --------- -------- --------- -------- --------- -------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
(IN THOUSANDS)
Revenues:
Software............... $ 130 $ 246 $ 889 $ 1,163 $ 1,817 $ 2,203 $ 2,479 $ 2,372 $ 3,110
Services............... 43 132 150 151 256 437 505 647 1,179
-------- --------- -------- --------- -------- --------- -------- --------- ---------
Total revenues........... 173 378 1,039 1,314 2,073 2,640 2,984 3,019 4,289
Costs and expenses:
Costs of software...... 4 7 27 8 16 17 18 24 36
Costs of services...... 297 364 446 648 739 937 1,057 1,068 1,292
Sales and marketing.... 492 667 943 1,192 1,523 1,782 2,126 2,091 2,462
Research and
development.......... 453 558 671 834 1,003 1,035 1,193 1,363 1,641
General and
administrative....... 143 224 277 296 294 364 453 507 628
-------- --------- -------- --------- -------- --------- -------- --------- ---------
Total costs and
expenses................ 1,389 1,820 2,364 2,978 3,575 4,135 4,847 5,053 6,059
-------- --------- -------- --------- -------- --------- -------- --------- ---------
Operating loss........... (1,216) (1,442) (1,325) (1,664) (1,502) (1,495) (1,863) (2,034) (1,770)
Interest expense, net.... 70 111 146 184 244 238 202 189 209
-------- --------- -------- --------- -------- --------- -------- --------- ---------
Loss before income
taxes................... (1,286) (1,553) (1,471) (1,848) (1,746) (1,733) (2,065) (2,223) (1,979)
Income taxes............. -- -- -- -- -- -- -- -- --
-------- --------- -------- --------- -------- --------- -------- --------- ---------
Net loss................. $ (1,286) $ (1,553) $ (1,471) $(1,848) $ (1,746) $ (1,733) $ (2,065) $(2,223) $ (1,979)
-------- --------- -------- --------- -------- --------- -------- --------- ---------
-------- --------- -------- --------- -------- --------- -------- --------- ---------
<CAPTION>
PERCENTAGE OF TOTAL REVENUES
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Revenues:
Software............... 75% 65% 86% 89% 88% 83% 83% 79% 73%
Services............... 25 35 14 11 12 17 17 21 27
-------- --------- -------- --------- -------- --------- -------- --------- ---------
Total revenues........... 100 100 100 100 100 100 100 100 100
Costs and expenses:
Costs of software...... 2 2 3 1 1 1 1 1 1
Costs of services...... 172 96 43 49 36 35 35 36 30
Sales and marketing.... 284 176 91 91 73 68 71 69 57
Research and
development.......... 262 148 65 63 48 39 40 45 38
General and
administrative....... 83 59 27 23 14 14 15 17 15
-------- --------- -------- --------- -------- --------- -------- --------- ---------
Total costs and
expenses................ 803 481 229 227 172 157 162 168 141
-------- --------- -------- --------- -------- --------- -------- --------- ---------
Operating loss........... (703) (381) (129) (127) (72) (57) (62) (68) (41)
Interest expense, net.... 40 29 14 14 12 9 7 6 5
-------- --------- -------- --------- -------- --------- -------- --------- ---------
Loss before income
taxes................... (743) (410) (143) (141) (84) (66) (69) (74) (46)
Income taxes............. -- -- -- -- -- -- -- -- --
-------- --------- -------- --------- -------- --------- -------- --------- ---------
Net loss................. (743)% (410)% (143)% (141)% (84)% (66)% (69)% (74)% (46)%
-------- --------- -------- --------- -------- --------- -------- --------- ---------
-------- --------- -------- --------- -------- --------- -------- --------- ---------
</TABLE>
Quarterly software revenues have generally increased in each of the nine
quarters ended June 30, 1999, due primarily to the increased market acceptance
of EIC and the growth of our reseller network. Quarterly services revenues have
also generally increased in amount in each of these quarters, due primarily to
recognition of product maintenance revenues attributed to our growing end-user
customer base and professional service revenues from our resellers and end-user
customers.
28
<PAGE>
Total operating expenses increased in amount in each of these quarters.
Since inception, we have increased our spending in every functional area of the
organization. However, the percentage increases in spending for each quarter
have generally been less than the percentage increases in our revenues for the
corresponding quarter. We anticipate that our operating expenses will increase
substantially for the foreseeable future as we continue to expand our research
and development, marketing, sales and services efforts. We anticipate that these
expenses could significantly precede any revenues generated by the increased
spending. If we do not experience significantly increased revenues from these
efforts, our business, financial condition or results of operations could be
materially adversely affected.
LIQUIDITY AND CAPITAL RESOURCES
Since our inception, we have funded our operations primarily through equity
and debt infusions from our principal stockholder, Dr. Brown. We have also
entered into secured and unsecured commercial lines of credit guaranteed by Dr.
Brown, as well as equipment financing guaranteed by Dr. Brown. Through June 30,
1999, Dr. Brown's equity and debt investments totaled $12.2 million. In
addition, on November 5, 1998, Dialogic Investment Corporation made a $5.0
million equity investment by purchasing 600,000 shares of our common stock. As
of June 30, 1999, we had cash and cash equivalents of $87,000 and a working
capital deficit of $3.2 million.
Our operating activities resulted in net cash outflows of $1.2 million in
1996, $4.5 million in 1997, $7.1 million in 1998 and $1.7 million for the
six-month period ended June 30, 1999. The operating cash outflows for these
periods resulted from significant investments in research and development,
sales, marketing and services, which led to operating losses. Payments for
software licenses ordered by our resellers are generally due 30 to 60 days after
receipt of a binding order. Similarly, payments for software licensed directly
to end-user customers are generally due 30 to 60 days after receipt of a signed
contract.
To date, our investing activities have consisted primarily of capital
expenditures for property and equipment, including $1.7 million of capital
expenditures for the six-month period ended June 30, 1999. These capital
expenditures have consisted primarily of computer hardware and software for our
growing employee headcount, our research and development needs and equipment and
furniture related to the recent move to our current headquarters location. At
June 30, 1999, we did not have any material commitments for future capital
expenditures.
Financing activities have consisted primarily of the issuance of debt and
equity to Dr. Brown, the guaranteed borrowings under commercial lines of credit,
and the equity investment by Dialogic Investment Corporation. At June 30, 1999,
we had $1.1 million outstanding on our accounts receivable line of credit and
were in compliance with all related financial covenants and restrictions. We
currently anticipate that we will continue to experience significant growth in
our operating expenses for the foreseeable future as we expand our research and
development, marketing, sales and services operations.
In connection with this offering, we intend to replace our existing credit
facilities with a new $5.0 million unsecured line of credit from our primary
lender. We have received a commitment letter for this facility. The commitment
letter is subject to the completion of this offering, the negotiation and
execution of definitive documents and other customary conditions. We anticipate
that amounts borrowed under the new credit facility will bear interest at the
lender's prime rate. Dr. Brown will not be required to guarantee the new credit
facility. We anticipate that the new credit facility will contain covenants
that, among other things, will limit our ability to incur additional
indebtedness and pay dividends and will require us to maintain prescribed debt
to equity and fixed charge coverage ratios and minimum net worth levels.
Although we believe we will successfully meet the requirements to obtain this
credit facility, we cannot assure you that we will be able to do so.
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We believe that the net proceeds of this offering, together with existing
cash and cash equivalents and amounts available under the new credit facility,
will be sufficient to meet our working capital and capital expenditure
requirements for at least the next 12 months. After that time, we may require
additional funds to support our working capital requirements or for other
corporate purposes and may seek to raise additional funds through public or
private equity or debt financings or from other sources. We cannot assure you
that additional financing will be available at all or that, if available, will
be on terms favorable to us or that any additional financing will not dilute
your ownership interest in Interactive Intelligence. See "Risk Factors--We may
not be able to obtain adequate financing to implement our growth strategy."
YEAR 2000 COMPLIANCE
Many currently installed computer systems are not capable of distinguishing
21st century dates from 20th century dates. As a result, beginning on or before
January 1, 2000, computer systems and software used by many companies and
organizations in a wide variety of industries will produce erroneous results or
fail unless they have been modified or upgraded to process date information
correctly. Significant uncertainty exists in the software industry and other
industries concerning the scope and magnitude of problems associated with the
century change.
We have addressed or are addressing the Year 2000 issues in the following
principal areas:
- our software products, including third-party products we embed or license;
- internal technology systems, including non-information technology systems;
- key suppliers and resellers; and
- end-user customers.
We have not retained any independent parties to verify or validate our
evaluation of Year 2000 issues or any related cost estimates.
OUR SOFTWARE PRODUCTS
We have warranted that all of our current products are Year 2000 compliant.
We continuously test our newly developed software for Year 2000 compliance, and
as of this date, are not aware of any problems related to Year 2000 compliance
for software products we are currently distributing. However, our products are
sometimes integrated into enterprise systems involving sophisticated hardware
and complex software products developed by third parties. Further, we embed in
our products other parties' software products, including products from our two
material suppliers, Dialogic Corporation and Microsoft Corporation. Our two
material suppliers have not warranted that their products which could impact the
performance of our products are Year 2000 compliant. We cannot adequately
evaluate third-party products for Year 2000 compliance. Based on our assessments
to date, we believe that we will not experience any material disruption as a
result of any Year 2000 problems. However, if our products or the third-party
products we embed have Year 2000 problems, our most reasonably likely worst case
scenario is that we could lose current or potential customers, incur costs
related to replacing third party products, face claims based on Year 2000
problems under our warranties, or otherwise, based on Year 2000 problems in
other companies' products or issues arising from the integration of multiple
products within an overall system, any of which could have a material adverse
effect on our business, financial condition or results of operations. Since we
are in the business of selling software, our risk of facing claims relating to
Year 2000 issues is greater than that of companies in some other industries.
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INTERNAL MANAGEMENT AND INFORMATION SYSTEMS
We use a combination of our own software and other commercially available
software for our internal operations. At this time, we believe that there will
be no significant costs associated with the Year 2000 issue for internal
operations. We are not presently aware of any Year 2000 issues that have been
encountered by a third-party provider whose services are critical to us. We
intend to complete an evaluation of providers with respect to Year 2000
compliance by the end of September 1999. At the completion of the assessment we
will develop a contingency plan, if necessary, to address any Year 2000 issues.
We have also contacted the third parties who control our security systems,
electrical systems, heating and air conditioning systems, and other systems
related to the physical operation of our headquarters buildings that may contain
embedded technology, such as micro-controllers and microchip processors, to
assess whether any of these systems possess a Year 2000 problem that could
adversely affect our operations if a malfunction occurred. We have implemented
procedures to determine whether any of these systems that we acquire or utilize
in the future are also Year 2000 compliant.
KEY SUPPLIERS AND RESELLERS
We have begun to contact our key suppliers and intend to contact our key
resellers regarding Year 2000 issues. We are working to identify any key
suppliers and resellers that may have Year 2000 issues that could have an
adverse effect on our ability to deliver our products and services to customers.
We expect to complete this evaluation by the end of September 1999.
END-USER CUSTOMERS
We believe that the purchasing patterns of current and potential end-user
customers may be affected by Year 2000 issues as companies expend significant
resources to correct or upgrade their current software systems for Year 2000
compliance. These expenditures may reduce the funds available to license
software products such as those we offer. To the extent Year 2000 issues
significantly disrupt decisions to license our products or purchase our
services, our business, financial condition or results of operations could be
materially adversely affected.
To date, we have not deferred any other information technology projects due
to our Year 2000 efforts and we have not incurred any material costs directly
associated with our Year 2000 compliance efforts. Our costs to date primarily
consist of compensation expense associated with our employees who have devoted
some of their time to our Year 2000 assessment and remediation efforts.
Currently, we do not expect the total cost of Year 2000 problems to be material
to our business, financial condition or results of operations. However, during
the months before the century change, we will continue to evaluate new versions
of our software products, new software and information systems provided to us by
third parties and any new infrastructure systems that we acquire to determine
whether they are Year 2000 compliant. Despite our current assessment, we may not
identify and correct all significant Year 2000 problems on a timely basis. Year
2000 compliance efforts may involve significant time and expense and
unremediated problems could materially adversely affect our business, financial
condition or results of operations. We currently have no contingency plans to
address the risks associated with unremediated Year 2000 problems. See "Risk
Factors--Year 2000 issues may adversely affect our business."
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BUSINESS
OVERVIEW
We are a leading developer of enterprise software that allows our customers
to automate virtually every aspect of their business communications. When
installed on a Windows NT-Registered Trademark- server, our flagship product,
Enterprise Interaction Center-Registered Trademark- or EIC, provides a single,
integrated solution capable of processing thousands of interactions per hour,
including telephone calls, e-mails, faxes, voice mail messages, Internet chat
sessions, Web callback requests and voice over Net calls. EIC is a unique
software solution that replaces a variety of traditional devices such as private
branch exchange devices or PBXs, interactive voice response systems or IVRs,
automatic call distributors or ACDs, voice mail systems, fax servers, call
recorders and computer telephony integration or CTI gateways. We began licensing
our products in 1997 and have grown our revenues from $1.6 million in 1997 to
$9.0 million in 1998.
We believe that EIC provides our end-user customers with an all-in-one
communications solution that has several advantages over the traditional
multi-device approach, including:
- broader range of functions;
- reduced need to integrate disparate technologies;
- open architecture and better compatibility with leading technologies;
- lower total cost of ownership; and
- greater ability to customize communications to meet specific needs.
We design our software to meet the needs of end-user customers in three
growing markets: call centers, enterprises and service providers. We license our
products to over 250 end-user customers, including Ameritech Corporation,
BuyItNow, Inc., Deutsche Telekom Berkom Gmbh, Seagate Technology, Inc. and
Toshiba America Consumer Products. We market our software products and services
through an extensive distribution network consisting of over 100 independent
value added resellers in North America, Europe and the Asia/Pacific region. Our
resellers range from relatively small, local organizations to large regional and
national firms, such as Bell South Communication Systems, Inc. and KPN Telecom
B.V. We also provide our end-user customers and resellers with a variety of
related services.
INDUSTRY OVERVIEW
Due to a broad combination of factors, including deregulation, consolidation
and advances in technology, many organizations are looking to communications
technology to increase efficiency and provide better service. As a result, the
communications industry is experiencing significant changes. We believe we are
well positioned to take advantage of the following major trends taking place
within many industries:
GROWTH OF CALL CENTERS
In an increasingly competitive environment, businesses are attempting to
differentiate themselves with their customer service and support. Examples of
these businesses include recently deregulated industries such as financial
services and utilities. To consolidate customer contact points and focus on
customer service, organizations are frequently implementing formal call centers.
Putting a call center into place has traditionally required organizations to
purchase several different communications devices, such as a private branch
exchange or PBX, an interactive voice response system or IVR, an automatic call
distributor or ACD, a predictive dialer and a call logger, and then spend time
and money attempting to integrate these disparate devices. We believe that the
market for call center
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communications products in 1998 represented approximately 55% of the estimated
$10.0 billion computer telephony industry, and we expect this market to grow at
25% to 30% annually.
INCREASING VARIETY AND COMPLEXITY OF BUSINESS COMMUNICATIONS
In addition to more traditional communications media such as telephone, fax
and voice mail, the growth of the Internet has expanded the number and
complexity of communications media to include e-mail, Internet chat sessions,
Web callback requests and voice over Net calls. We believe that approximately
one-fifth of customer contact will shift from the phone to the Internet in the
next two years. Additionally, most enterprises currently interact through these
media using separate devices, resulting in inefficient communication. These
circumstances are forcing organizations to re-evaluate their systems in order to
address the requirements of a more complex communications environment.
INCREASING NEED TO INTEGRATE BUSINESS COMMUNICATIONS AND COMPUTER SYSTEMS
Historically, telecommunications systems and information systems have been
separate and distinct. To more effectively and efficiently interact, both
internally and externally, we believe that enterprises need to seamlessly access
and utilize these two systems. Products, often referred to as middleware, have
been designed to integrate various types of telecommunications devices with
information technology. For example, an application called screen pop makes a
window pop up on an agent's monitor with information about a call at about the
same time that the agent's telephone or headset begins to ring. This allows the
agent to see all the information necessary to assist the customer. With
middleware, even simple applications, such as screen pop, are often difficult
and expensive to implement.
We believe that the traditional approach of using middleware software
products to integrate communications and information systems suffers from a
number of fundamental problems. Implementing this type of solution is both
expensive and time consuming, often requiring many months or even years to
implement, and the total cost of ownership over time is high due to the multiple
points of configuration, administration and maintenance. Modification and
management of a traditional integrated infrastructure are also difficult since
each device is configured independently by different vendors. For instance,
hiring a new agent may require configuring a new extension in the PBX, defining
a new mail box in the voice mail system and creating a new agent entry in the
ACD. This process is not only expensive and time consuming, but may also result
in information being lost or inconsistently entered into each device. We also
believe that this traditional multi-device approach will make it more difficult
for enterprises to interact over the Internet and will require additional
devices and more integration, further complicating the current situation.
We believe a new approach is required that does not attempt to resolve
differences among disparate devices, but rather provides a platform based on
standard hardware and software systems, a unified set of communications and
interaction services and seamless integration with information technology
components such as networks, servers, databases and desktop computers.
ENTRANCE OF NEW SERVICE PROVIDERS
For years, the regional Bell operating companies and other telephone
companies have provided voice mail, caller ID and other communications services
to consumers and small businesses. The Telecommunications Act of 1996
deregulated many aspects of the communications market and resulted in a rapid
increase in the number and types of organizations seeking to provide
communications services. These new service provider entrants include local
exchange carriers, cable companies, Internet service providers and wireless
companies.
Generally, these organizations provide some sort of communications
connection into homes and businesses that they charge for on a regular basis. As
the price for connectivity declines rapidly, we believe that these organizations
may want to differentiate their offerings based on the enhanced
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services they can provide. Examples of these services include unified messaging,
fax, interactive voice response, speech recognition, paging, conferencing, phone
numbers that follow the recipient of the call, and appointment scheduling. We
believe that the number of worldwide unified messaging mailboxes will grow from
an estimated 320,000 at the end of 1997 to more than 15.9 million by 2002. We
also expect service providers to implement Web-based services such as Web
callback, Internet chat sessions and voice over net.
Traditionally, providing a wide range of voice and data interaction services
required service providers to interface different proprietary systems and incur
significant integration fees. We believe this creates the need for a new
platform for service providers that is flexible enough to deliver a variety of
enhanced services under a common administration and design architecture, while
at the same time lowering both the cost of entry and ongoing operation.
In our opinion, the traditional multi-device approach to communications and
interaction by organizations is inadequate to address the needs created by these
trends. We believe that the shortcomings of this approach create a significant
opportunity for a single, all-in-one solution based on standard hardware and
software technology, such as a Windows NT-Registered Trademark- server, that
enables organizations to efficiently and effectively interact with all of their
constituents. We believe that we have developed such a solution.
INTERACTIVE INTELLIGENCE SOLUTION
The Interactive Intelligence solution for call centers, enterprises and
service providers is an open software platform that, when installed on a server
running Windows NT-Registered Trademark-, provides a comprehensive set of
communications and interaction management services and requires little or no
integration. Our flagship product, EIC, is capable of processing thousands of
interactions per hour, including telephone calls, e-mails, faxes, voice mail
messages, Internet chat sessions, Web call-back requests and voice over Net
calls.
We believe that the differentiating characteristics of the Interactive
Intelligence solution allow our end-user customers to more effectively
communicate and interact with their constituencies at a lower total cost of
ownership than through the use of traditional computer telephony integration
products. The strategic advantages of our single system approach are:
BROADER RANGE OF FUNCTIONS. Unlike traditional systems that require
end-user customers to purchase separate products to attain broader
functionality, EIC is an all-in-one system that offers a broad suite of
communications features, including telephony, inbound and outbound fax, e-mail
processing, automatic call distribution, interactive voice response,
conferencing, call recording, call monitoring and text chat processing. EIC also
includes facilities that allow supervisors to obtain numerous reports and to
view communications statistics in real time. We believe that, collectively,
these capabilities allow our customers to improve customer service and increase
internal efficiency.
REDUCED NEED TO INTEGRATE DISPARATE TECHNOLOGIES. Traditional
communications systems generally require significant integration efforts to get
their different components to work together effectively. This integration often
involves the purchase of expensive hardware, middleware and services. EIC pre-
assembles all of the necessary components into one software solution, allowing
end-user customers to concentrate their efforts on improving business
operations. Alternatively, EIC can be used to supplement the capabilities of a
PBX to provide Web-based interaction management, unified messaging, IVR or
departmental call center services.
OPEN ARCHITECTURE AND BETTER COMPATIBILITY WITH LEADING
TECHNOLOGIES. Traditional communications devices are based on proprietary,
closed architecture, which often limits the end-user customer's ability to
change or customize the products. Frequently, even simple changes such as adding
a new employee or changing an employee's location require intervention by the
vendor. Our products are built around
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industry standard hardware and software components such as Intel microprocessors
and the Microsoft Windows NT-Registered Trademark- operating system. Our open
architecture allows end-user customers to configure our system to meet their
customized communications needs and to make hardware or software modifications
as necessary. For example, if one of our end-user customers needs more space for
voice mail recordings, it can simply purchase a larger disk drive on the open
market. Our products also interoperate easily with popular information
technology products, including:
- e-mail servers, including Microsoft Exchange Server-Registered Trademark-
and, in our next version, Lotus Notes-Registered Trademark-;
- database systems, including those from Oracle Corp., Sybase, Inc.,
Microsoft Corporation and IBM Corporation;
- mainframe systems, including those that support 3270 and 5250 terminal
emulation;
- Web servers, including Microsoft IIS, Netscape and Apache;
- network management systems, including HP OpenView, IBM Tivoli and CA
Unicenter; and
- customer relationship management systems, including those from Vantive
Corporation, Clarify, Inc., Remedy Corp. and Onyx Software Corp.
LOWER TOTAL COST OF OWNERSHIP. We believe that our all-in-one solution
results in a lower total cost of ownership in comparison to traditional
communication systems with similar functionality, which typically consist of
multiple, disparate add-on components. For example, EIC's capabilities reside in
a single Windows NT-Registered Trademark- server with a software interface
designed for ease of use. As a result, all configuration and maintenance of our
products are confined to a single system. This results in a lower total cost of
ownership due to the reduced time and expense typically required to maintain a
centralized software-based communications system.
GREATER ABILITY TO CUSTOMIZE COMMUNICATIONS TO MEET SPECIFIC NEEDS. While
EIC can be deployed quickly with minimal configuration, organizations can also
customize many aspects of their communications processing using EIC's graphical
application generator. This means that EIC can serve as a platform upon which
organizations can build highly tailored communications processes for their
customers, employees or subscribers. It also means that end-user customers need
to learn only a single tool in order to customize their dial plans, call
distribution rules, interactive voice response menus, fax applications, Web
services, voice mail systems and other communications applications.
GROWTH STRATEGY
Our primary business objective is to become the leading vendor of enterprise
software that allows call centers, enterprises and service providers to automate
virtually every aspect of their business communications. Our strategy for
achieving this objective incorporates the following key elements:
CONTINUE TO EXPAND OUR LEADING TECHNOLOGY POSITION. We have significant
technical expertise in call center, communications and software technologies. We
intend to use our expertise to add new features to our products to increase
their marketability in our three target markets. We also intend to improve the
ability of our current and future products to handle the needs of larger
organizations. We are currently developing technology that would allow EIC to
work effectively with ATM switches from vendors such as Cisco Systems, Inc. and
Fore Systems, Inc. If we are successful, EIC will be able to meet the needs of
call centers with up to 500 agents per site, enterprises with up to 1,000
employees per site, and service providers with up to 100,000 subscribers. We
also plan to broaden the compatibility of our products to work with other
systems and applications used by our end-user customers. For example, we intend
to add support for the Novell e-mail and directory services products, such as
Groupwise and Novell Directory Services or NDS, to increase our addressable
market.
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BROADEN OUR PRODUCT OFFERING. We plan to broaden our product offering with
additional products and features for our target markets. For the call center
market, we have developed and are currently testing new products, including
Interaction Dialer, which automates outbound calls, and Interaction Director,
which efficiently distributes calls across multiple call centers. We also plan
to create new products and interfaces to third-party products to cover
additional areas such as agent performance evaluation and scheduling. For
enterprises, we plan to add new applications including a multimedia conference
bridge and a speech-enabled personal assistant. For service providers, we intend
to add support for large-scale, Unix-based messaging platforms that will allow
service providers to handle tens of thousands of subscribers for unified
messaging, phone numbers that follow the recipient of the call, and other
enhanced services.
FURTHER EXPAND OUR GLOBAL DISTRIBUTION CHANNEL. We plan to further expand
our existing distribution channel, which currently consists of over 100
resellers in more than 20 countries. Our expansion efforts include a significant
focus on broadening our distribution channel in North America and we also plan
to expand our distribution channel in Europe and the Asia/Pacific region.
Currently, we have over 75 resellers and a 24-person field sales force that
manages, supports and develops our distribution channel in North America and
approximately 25 resellers and a four-person field sales force in Europe and the
Asia/Pacific region. We have also signed a reseller in South Africa and have
begun to sign resellers in Central and South America. We intend to continue to
broaden our geographic and market presence through our reseller coverage to
enhance our market share position.
DEVELOP OUR STRATEGIC BUSINESS RELATIONSHIPS. We have strategic
relationships with leading technology companies, including Dialogic Corporation,
Microsoft Corporation and Nuance Communications. As evidence of our commitment
to growth, Microsoft Corporation recently recognized us as the ninth fastest
growing independent software vendor using Microsoft
Windows-Registered Trademark-. In addition to our relationships with technology
companies, we intend to pursue strategic relationships with network equipment
vendors as well as developers of customer relationship management software to
build upon our comprehensive, turnkey solution. EIC complements both types of
products by utilizing the voice delivery capabilities of network devices such as
routers and switches, while providing the call center front-end capabilities
used in conjunction with customer relationship management applications. We also
intend to evaluate strategic acquisitions or investment opportunities for
products and technologies that complement or extend our existing products, offer
access to additional distribution channels or increase our customer base.
PRODUCTS
We currently market and license our flagship product, Enterprise Interaction
Center-Registered Trademark- or EIC, as well as Interaction Recorder-TM-, a
complementary product that allows the user to easily log, record and retrieve
any call. We have also developed and are currently testing two new products,
Interaction Dialer-TM- and Interaction Director-TM-.
ENTERPRISE INTERACTION CENTER-REGISTERED TRADEMARK- (VERSION 1.2)
EIC turns a Windows NT-Registered Trademark- server containing the
appropriate voice processing boards into an all-in-one communications server.
Customers connect their telephone trunk lines, handsets and headsets to the EIC
server and gain an integrated communications system, capable of meeting an
organization's specific interaction processing requirements. We allow our
end-user customers to license all or some specific combinations of the features
of EIC.
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EIC provides organizations with a broad array of communications and
interaction processing capabilities, including:
- Telephone system--allows end-users to place and receive telephone calls
just like a private branch exchange or PBX. Analog trunks and digital
trunks, such as T1/E1, ISDN and PRI, from the telephone company can be
connected to an EIC server as well as the twisted pair connections to
desktop phones. In addition to basic hold and transfer operations, EIC
provides text-to-speech, speech recognition and support for conference
calls with up to 32 participants.
- Auto attendant--allows callers to locate specific individuals and
departments and direct their own calls without involving receptionists.
- IVR or interactive voice response--allows organizations to create
self-service applications that their customers can access from their
touch-tone phones. These applications can read and update information
stored in databases and mainframe systems to perform account lookups and
other operations.
- ACD or automatic call distributor--organizes incoming calls into queues
and distributes them to agents as they become available. Calls can be
distributed on a first-come, first-served basis or make use of more
complex methods such as skills-based routing. For example, some
organizations may wish to service calls from important customers before
servicing other calls.
- Call recording--allows end-users to record their own calls and supervisors
to record agent calls. EIC can also automatically record specified calls
according to pre-defined rules--for example, every third call coming into
a particular toll-free number or every call from a customer with a
past-due balance.
- Unified messaging--stores voice mail messages and faxes in Microsoft
Exchange-Registered Trademark- mailboxes, from which end-users can
retrieve them by phone, desktop computer or remotely over the Internet.
This unified messaging capability is popular among our enterprise and
service provider customers.
- Web services--allows organizations to queue and distribute incoming
Internet text chats as they do with telephone calls. For example, while
browsing a company's Web site, a potential customer can click a button and
use text chat to pose a question to a call center agent. EIC also includes
tools that allow organizations to process incoming e-mail messages, Web
callback requests and voice over Net calls.
- Fax server--provides inbound and outbound fax services for the entire
organization. Automatically detects incoming fax calls and includes
support for fax broadcast, fax on demand, optical character recognition
and other fax applications.
- Graphical application generator--allows organizations to tailor EIC's call
and interaction management functions to meet their specific needs and to
integrate EIC into their information systems. EIC includes a graphical
application generator called Interaction Designer-TM- that can be used to
customize dial plans, call distribution rules, IVR scripts, fax services,
Web interactions and other functions.
EIC also includes software that runs on desktop computers and provides
individuals with the following capabilities:
- A software phone that allows individuals to visually manage calls from
their desktop computer, including dialing, transferring, conferencing and
recording. EIC includes both Win32 and Java versions to support a wide
range of desktop operating systems.
- On-screen company and department directories that allow individuals to
quickly locate addresses, phone numbers and other employee information.
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- Real-time in-out boards that display the status, such as on the phone, at
lunch or in a meeting, of other employees.
- Management windows that allow supervisors to record and monitor calls as
well as view real-time information for every queue, line, user, workgroup
and station.
- Desktop fax support that allows individuals to send and receive faxes from
their desktop computers.
- Screen pops that allow EIC to activate a particular application, such as a
customer relationship management program, whenever an incoming call
arrives. The activated application can display all the call information
collected by EIC and provide call handling options including hold,
transfer and conference.
ENTERPRISE INTERACTION CENTER (VERSION 1.3)
We are releasing EIC Version 1.3 during July 1999. This enhanced version of
EIC has all of the capabilities of Version 1.2, and also provides approximately
50 new features and functions, including:
- complete remote agent support that allows remote employees to handle
calls, receive screen pops, send faxes, access phone directories, and
otherwise communicate just as if they were in the office;
- speech recognition capabilities;
- support for Lotus Notes-Registered Trademark- for voice mail and unified
messaging;
- clustering of multiple servers for automatic recovery from failures;
- optical character recognition to automatically convert faxes into
documents; and
- branch office connection that allows branch office employees to be a part
of the headquarters telecommunication systems.
EIC Version 1.3 will be available to our end-user customers that are currently
licensing EIC and using Version 1.2, as a product upgrade included in the
ongoing maintenance provided as a term of their license. After the release of
EIC Version 1.3 is completed, our sales and marketing efforts, and those of our
resellers, will focus primarily on the licensing of Version 1.3.
INTERACTION RECORDER-TM- (VERSION 1.2)
Interaction Recorder is a complementary product that enhances EIC's basic
call recording capabilities by providing recording management for organizations,
such as call centers and banks, that generate large numbers of recordings.
First, Interaction Recorder logs complete information about every recording,
such as customer name, account number and transactions selected, to a database.
Next, it compresses recordings by 87.5% to reduce storage requirements.
Interaction Recorder allows organizations to periodically archive groups of
recordings onto compact discs or other media and provides a user interface from
which supervisors and other employees can later search for particular recordings
and access them at any time.
INTERACTION DIALER-TM- (IN TESTING)
We are currently testing Interaction Dialer, a predictive dialing product
that is complementary to EIC. Predictive dialing is the process of automatically
making outbound calls to a list of phone numbers and quickly connecting to call
center agents any calls answered by a person. We are developing Interaction
Dialer to provide call list management and answering machine detection. We have
created a sophisticated predictive algorithm that decides exactly how many calls
to place and when
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to make them in order to maximize the probability that an agent will be
available when a person answers a call.
Interaction Dialer builds entirely upon EIC's facilities for automatic call
distribution, reporting and supervision, giving it blended capabilities for call
centers wishing to use agents for both inbound and outbound call processing. A
client-side component will allow end-user customers to create visual call flow
scripts using any Web page editor. When an outbound call connects to an agent,
Interaction Dialer automatically pops a script that can display customer
information and lead the agent through the current call.
INTERACTION DIRECTOR-TM- (IN TESTING)
We are currently testing Interaction Director, a pre-call routing product
designed to efficiently distribute incoming calls across sites for multi-site
call centers. Given a data connection to the EIC server at each call center,
Interaction Director builds an in-memory database of near real-time information,
including current expected hold times at each site, queue lengths, number of
agents available and specific skills available. It then distributes incoming
calls based on this information and customized routing rules.
Pre-call routing is the process of looking at a call while it is still in
the public switched telephone network and deciding to which location it should
be sent. Interaction Director currently supports the signaling system 7 or SS7
protocol and can thus be notified about new calls before they leave the
telephone network. Interaction Director can examine specific information about a
call and then use the up-to-date information in the in-memory database to decide
to which site to route the call. Once it has chosen a destination site,
Interaction Director signals its choice back to the telephone network. Pre-call
routing allows calls to be distributed efficiently across a collection of sites
and helps make effective use of agent resources. It also allows multi-site
organizations to provide superior customer service by minimizing wait times and
making sure that calls are routed to the sites best able to handle them. As an
example, Interaction Director could route calls from Spanish speaking customers
to a site with Spanish speaking agents. The end-user customer can create the
logic that determines where a given call is routed by using Interaction
Designer. AT&T Corporation has tested Interaction Director and determined that
it is interoperable with AT&T's Intelligent Call Processing Service, which
utilizes SS7. We are currently working to add support for MCI WorldCom Inc. and
other carriers.
In addition to pre-call routing, Interaction Director will also support
post-call routing, which routes a call to another location after it has already
been delivered to a particular call center. For example, after a caller has been
on hold for more than a specified period of time, the end-user customer could
configure its EIC system to ask Interaction Director if another site would be
able to handle the call sooner. If so, the EIC system could then transfer the
call to that other location.
TECHNOLOGY
We have developed a number of innovative technologies that underlie our
family of products, including:
UNIVERSAL INTERACTION ENGINE. At the core of EIC is an event-processing
engine that determines how different types of communications events are handled.
This engine makes use of the Java virtual machine to dispatch events, such as
incoming telephone calls, to software objects that process them. This approach
allows us to maximize our use of a widely used, multi-threaded interpreter to
handle large numbers of communications events under Windows
NT-Registered Trademark-. It also provides an architectural control point around
which we can create new services.
NOTIFIER MESSAGING COMPONENT. We have invented a sophisticated,
publish-subscribe messaging component called Notifier which allows all the
different portions of our products to communicate with
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each other using the TCP/IP protocol. Different subsystems and applications
register with Notifier for events in which they are interested. As events flow
through Notifier, it forwards them on to the interested parties. This approach
is more efficient than simpler schemes which broadcast all events to all
components. Our Notifier architecture works especially well in wide area
networks where efficient use of bandwidth is critical. Notifier also allows
components to be widely distributed and to run over any TCP/IP connection,
including the Internet. As a result, our software phone and end-user fax tools
can be installed on a work-at-home agent's home computer and used over an
Internet connection.
GRAPHICAL APPLICATION GENERATOR. Underlying our entire suite of products is
a single graphical application generator called Interaction Designer. This
development tool allows users to visually lay out logic that determines how
different types of events are to be processed. Interaction Designer includes a
tool palette of over one hundred objects that can be dragged into a workspace
and linked together. Once the handler for a particular event is complete,
Interaction Designer generates a Java class file, compiles it and executes it in
the universal interaction engine. This means that organizations can change the
ways in which different interactions are processed without restarting devices.
GRAPHICAL ADMINISTRATIVE CONSOLE. A single graphical application called
Interaction Administrator can be used to configure many different aspects of our
products. Supervisors can configure analog or digital telephone trunks, change
user profiles, define queues, add skills and perform many other common
administrative tasks from simple dialog boxes. Interaction Administrator
automatically sends out change notifications that are propagated via Notifier to
the various components that comprise our products. Thus, when a new employee is
added, his or her name automatically appears on agent and supervisor screens.
DATABASE AND MAINFRAME CONNECTIVITY. We have written software components
that provide access to information stored in most common relational database
systems, including those from Oracle Corp., Sybase Inc., Informix Corporation,
Microsoft Corporation and IBM Corporation, and mainframe systems supporting 3270
and 5250 emulation. These software components use advanced techniques like
connection caching to handle large numbers of transactions.
PROGRAMMING INTERFACES. We have created interfaces that allow customers to
integrate other software applications with EIC. On the server side, we have DLL
and TCP/IP socket-level interfaces that allow customers to add new functionality
to EIC and to communicate with applications running on other systems. On the
client side, we have both DDE and COM interfaces that make it possible to embed
EIC's capabilities into desktop applications.
MULTI-SITE CALL ROUTING AND SS7 SUPPORT. We are currently testing software
that allows us to communicate directly with public switched telephone networks
using the SS7 protocol. This allows us to receive advance notification from the
phone company of incoming calls and to tell the phone company where each call
should be sent in a multi-site environment. This is especially important for
call centers with multiple sites. If each site is running our EIC product and is
connected to a wide area network, we can collect near real-time information,
including number of calls in queue and number of agents available, and decide
which site is best able to handle new incoming calls.
RESEARCH AND DEVELOPMENT
We believe that strong product development capabilities are essential to our
strategy of building on our position as a technological leader in our industry,
maintaining the competitiveness of our current products and adding new features,
functions and products. Our product development team consists of professionals
with expertise in software, telecommunications and computer hardware, many of
whom have years of experience at industry leading companies in these segments,
such as Microsoft Corporation, Lucent Technologies, Inc. and Nortel Networks
Corporation, formerly known as Northern Telecom Limited. We believe that this
combination of diverse technical and communications expertise
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contributes to the highly integrated functionality of our software products and
provides us with a significant competitive advantage.
Currently, we are both a Microsoft Certified Developer as well as a
Microsoft Certified Solutions Provider. These designations give us early access
to Microsoft technology, allowing us to develop products more quickly and make
them interoperate more effectively with Microsoft products.
Research and development expenses for the last three fiscal years were
approximately $1.0 million in 1996, $2.1 million in 1997, and $4.1 million in
1998. Our research and development staff has grown from 15 employees as of
December 31, 1996 to 27 employees as of December 31, 1997, 49 employees as of
December 31, 1998 and 60 employees as of June 30, 1999. We believe that
investment in research and development is important for us to maintain our
position in the industry and, therefore, intend to increase our spending for
research and development in the future.
CUSTOMER SERVICES AND SUPPORT
We recognize the importance of offering quality service and support to our
resellers and end-user customers. Therefore, we provide a wide range of services
and support to both of these groups, including technical support for our
products, educational services, and professional services for implementing and
customizing our products. These services include the following:
TECHNICAL SUPPORT SERVICES. Our support services staff provides technical
support for both our resellers and end-user customers 24 hours a day, seven days
a week via phone, fax, e-mail and our Web site. We have support personnel in
Indianapolis and France, and also plan to open a support center in the
Asia/Pacific region. We utilize EIC, integrated with customer relationship
management software, to maximize the effectiveness of our support services.
Customer support services, along with product upgrades, are included in initial
and ongoing maintenance. Initial software license fees generally include one
year of maintenance. Generally, to continue using our software after this
initial period, our end-user customers must purchase annual ongoing product
maintenance.
EDUCATIONAL SERVICES. We place primary emphasis on providing a
comprehensive technical and sales education program to our resellers. We have
formal certification programs covering pre- and post-sales engineering,
installation and trouble shooting, implementation and project management, system
administration and application development. Several credits for our
supplementary or advanced educational offerings are included in our annual
reseller agreement and each subsequent annual renewal. For resellers and
end-user customers who would like additional supplementary or advanced training,
we offer classes that we bill on a per class basis.
PROFESSIONAL SERVICES. Our professional services staff supplements the
implementation and customization personnel of our resellers. We offer a wide
range of professional services for our end-user customers, including project
management, data systems integration and host connectivity. To further expedite
their implementation projects, end-user customers and resellers can select from
several pre-packaged fixed fee offerings. If desired, we also provide our
professional services on a time and materials basis.
SALES AND MARKETING
We distribute our software products primarily through our network of
resellers. We also maintain a field sales force to support our resellers, as
well as engage in limited direct sales efforts. In addition, we engage in a
number of marketing activities to support our sales efforts. As of June 30,
1999, we employed 44 people in sales and marketing.
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RESELLERS
We have a network of over 100 resellers that distribute our software
products in North America, Europe and the Asia/Pacific region. Our resellers
have a presence in more than 20 countries and 30 states. We have signed a
reseller in South Africa and have begun to sign resellers in Central and South
America. We intend to continue to broaden our geographic and market presence
through our reseller coverage in order to enhance our market share position.
We believe that the use of a diversified network of resellers offers the
following advantages:
- LARGER MARKET PRESENCE. The use of resellers allows us to have a broad
market presence, by leveraging our resellers' existing sales
infrastructure and other resources, without having to create these
resources.
- ACCELERATED MARKET PENETRATION. Our reseller network has allowed us to
have significant market penetration faster than would have been possible
with an in-house only sales staff.
- INDUSTRY EXPERIENCE/TECHNICAL EDUCATION. Our goal is to recruit resellers
that are highly trained, experienced and knowledgeable with respect to our
specific markets, as well as business communications technologies. To
qualify to be a reseller, an organization must have relevant telephony or
data experience. We provide comprehensive technical and sales education
with respect to our products to our resellers.
- PRODUCT COMPARISON. When a reseller offers its customers a wide range of
communications system options, including our products as well as other
vendors' products, we believe the customer will be able to appreciate the
advantages of our communications and interaction management software
relative to traditional multi-device approaches. As a result, customers
that are initially looking only to upgrade their existing systems may
instead replace their entire system with EIC.
FIELD SALES FORCE
To help our resellers be as productive as possible, we have developed a
field sales force that manages, supports and assists in the development of our
resellers and reseller network. In North America, our field sales force is
located in California, Colorado, Florida, Georgia, Indiana, Minnesota, Missouri,
New Hampshire, New Jersey, New York, Ohio, Texas, Virginia and Wisconsin.
Internationally, our field sales force is located in France, Japan, the
Netherlands and the United Kingdom. Occasionally, our field sales force makes
direct sales to end-user customers.
MARKETING
Our marketing programs are designed to:
- build market awareness of our communications and interaction management
software;
- generate qualified end-user customer leads; and
- establish end-user customer preference for our products.
To accomplish these goals, we engage in a variety of marketing activities,
including seminars, tradeshows, direct mailings, public relations activities,
advertisements and Web site marketing.
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CUSTOMERS
We license our products to more than 250 end-user customers in North
America, Europe and the Asia/Pacific region, including:
<TABLE>
<S> <C>
Ameritech Corporation E.I. du Pont de Nemours and Company
BMW Financial Services Italia (Italy) Exit Marketing AB (Sweden)
Bob Barker Company, Inc. Fiserv, Inc.
Boxlight Corporation Los Alamos National Laboratory
BuyItNow, Inc. NTS Marketing, Inc.
Caere Corporation Postel Australia (Australia)
Ceridian Corporation Seagate Technology, Inc.
Deutsche Telekom Berkom Gmbh (Germany) Techmar Communications, Inc.
Direct Focus, Inc. Toshiba America Consumer Products
Dongbu Fire & Marine Insurance (Korea)
</TABLE>
No end-user customer or reseller accounted for 10% or more of our revenues in
1998 or for the six months ended June 30, 1999.
The following are examples of call center and enterprise end-user customers
that use our communications and interaction management software:
BUYITNOW, INC. is a Web-based retailer of many consumer-oriented products,
including home electronics, appliances, home decor items and toys. According to
BuyItNow, it prides itself on superior customer service driving strong customer
satisfaction. BuyItNow, with design and implementation assistance from one of
our resellers, built an integrated phone- and Web-based call center platform.
For phone-based customers, EIC is the PBX, IVR, ACD and fax server that connects
potential and existing customers with BuyItNow sales and service agents. For
customers who prefer Web-based interactions, BuyItNow has implemented EIC's chat
management capabilities to allow customers to chat with a BuyItNow Web-based
agent. The agent can respond efficiently to an inquiry by typing a short
message, selecting a standard reply, or directing the customer's Web-browser to
a specific BuyItNow Web page. Using EIC, BuyItNow directs both phone calls and
chat requests to agents using skills-based routing rules. According to BuyItNow,
it selected EIC over products from Lucent Technologies, Inc., Aspect and WebLine
because EIC met the call center's telephony needs and also provided the
Internet-based interaction capabilities necessary to attract and retain
Web-based customers.
NTS MARKETING, INC. provides outsourced teleservices and fulfillment
services for organizations that do not have the internal infrastructure to
embark on significant marketing campaigns, such as mass advertising, or handle
the volume of inquiries that these campaigns often generate. For these
customers, NTS currently processes a volume of 15,000 to 20,000 calls per day.
According to NTS, after a thorough review of its business objectives, it
selected EIC as its technology centerpiece, because EIC provided a more flexible
communications system than its existing PBX and ACD devices could provide. With
EIC, NTS has gained, and currently uses, the functionality of multiple
telecommunications devices, including PBX, IVR, ACD, fax services, reporting
tools, unified messaging, call filtering/ blocking and recording capabilities.
NTS has also used EIC to create several custom call processing applications,
such as skills-based routing and HotEmails, which immediately send information
back to callers via e-mail while they are still on the phone. According to NTS,
these applications have reduced costs, improved productivity and enhanced
customer service. NTS believes that it would have been expensive and complex to
implement many of the time and money saving enhancements with traditional
telecommunications devices. According to NTS, EIC's open architecture allowed it
to proactively address many challenging and labor-intensive processes that were
having negative financial and competitive effects on its business.
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BOXLIGHT CORPORATION is a leading provider of liquid crystal display or LCD
projection products, digital input devices and presentation peripherals,
including slide creation, posters, powerpoint presentations, training and
creative services. Two years ago, Boxlight established a number of customer and
employee related communications objectives that, according to Boxlight, were not
possible to accomplish with its existing communications devices. As a result,
Boxlight implemented EIC in its Washington corporate offices as a complete
campus-wide solution and connected a satellite office in Tennessee to this EIC
system. With EIC, Boxlight has created a variety of enterprise applications. For
example, a remote employee can call an 800 number, enter an access code which is
validated against an authorization database and then place outgoing calls using
Boxlight's phone lines. Also, Boxlight has established a local/remote paging
system. From any phone at either Boxlight location, an employee can dial 01 and
speak a message, which is played over an internal intercom system at the
Washington corporate campus. Alternatively, an employee can dial 02 to speak
over the intercom system at the office in Tennessee. Boxlight has implemented
the chat feature of EIC on its newly designed Web site. This allows its Internet
customers real time access to sales and customer service representatives. EIC's
open architecture allows Boxlight to use its own resources to create these
enterprise communications solutions.
COMPETITION
The market for our software products is highly competitive and, because
there are relatively low barriers to entry in the software market, we expect
competition to increase significantly in the future. We cannot assure you that
we will be able to compete effectively against current and future competitors.
Our competition currently comes from several different market segments,
including computer telephony platform developers, computer telephony
applications software developers and telecommunications equipment vendors. These
competitors include Apropos Technology, Aspect Telecommunications Corporation,
CELLIT, Inc., Cisco Systems, Inc., Davox Corporation, Genesys Telecommunication
Laboratories, Inc., Lucent Technologies, Inc., Quintus Corporation, Nortel
Networks Corporation, Rockwell Electronic Commerce and Siemens Nixdorf
Information Systems AG/FI. We also compete to a lesser extent with new or recent
entrants to the marketplace. Our competitors vary in size and in the scope and
breadth of the products and services offered. See "Risk Factors--We face
competitive pressures, which may have a material adverse effect on us."
INTELLECTUAL PROPERTY AND OTHER PROPRIETARY RIGHTS
To protect our proprietary rights, we rely primarily on a combination of:
- copyright, trade secret and trademark laws;
- confidentiality agreements with employees and third parties; and
- protective contractual provisions such as those contained in license and
other agreements with consultants, suppliers, strategic partners,
resellers and end-user customers.
We have not signed agreements containing protective contractual provisions
in every case and the contractual provisions that are in place and the
protection they provide vary and may not provide us with adequate protection in
all circumstances. Despite our efforts to protect our proprietary rights,
unauthorized parties may copy aspects of our products and obtain and use
information that we regard as proprietary. Other parties may breach
confidentiality agreements and other protective contracts we have entered into,
and we may not become aware of these breaches or have adequate remedies for
them.
We generally require our employees to enter into confidentiality agreements
containing non-disclosure, non-competition and non-solicitation provisions. When
they begin employment, our
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employees also generally sign offer letters specifying the basic terms and
conditions of their employment.
We currently do not hold any patents. However, we have filed provisional
patent applications relating to technology embodied in our software products. We
hold the registered trademarks for Interactive
Intelligence-Registered Trademark- and Enterprise Interaction
Center-Registered Trademark- in the U.S. and have trademark applications pending
in the U.S. for the following marks: Interaction Client, Interaction Designer,
Interaction Administrator, Interaction Recorder, Interaction Dialer, Interaction
Director, Interaction Web, Interaction Mail, Multimedia Queuing and our logo
design mark. In addition, we have trademark applications pending in several
foreign countries for the marks Interactive Intelligence and Enterprise
Interaction Center. All other trademarks and trade names referred to in this
prospectus are the property of their owners.
We license some components of our products from third parties. If we were to
lose those licenses, we believe that we could obtain licenses from other sources
for similar components. However, if one or more of these licenses terminates or
cannot be renewed on satisfactory terms, we would have to modify the affected
products to use alternative components or technology or eliminate the affected
product function, either of which could have a material adverse effect on us.
See "Risk Factors--Infringement claims could adversely affect us" for a
description of correspondence recently received by us from a large, well
capitalized competitor claiming that our products utilize technologies pioneered
and patented by it.
EMPLOYEES
As of June 30, 1999, we had 167 employees worldwide, including 60 in
research and development, 43 in client services, 44 in sales and marketing and
20 in administration. Our future performance depends in significant part upon
the continued service of our key sales and marketing, technical and senior
management personnel and our continuing ability to attract and retain highly
qualified personnel. Competition for these personnel is intense and we cannot
assure you that we will be successful in attracting or retaining these personnel
in the future.
We believe that we have a unique corporate culture that attracts highly
qualified and motivated employees. We emphasize teamwork, flexible work
arrangements, local decision making and open communications. Every employee has
been granted stock options. None of our employees is represented by a labor
union and, except for nine employees working in France who are required by
French law to be subject to a collective bargaining agreement, none of our
employees is subject to a collective bargaining agreement. We have not
experienced any work stoppages and we consider our relations with our employees
to be excellent.
FACILITIES
We lease approximately 37,000 square feet of office space in our
headquarters building in Indianapolis, Indiana. As of June 30, 1999, the lease
required payments of approximately $3.4 million over the remaining term of the
lease, which expires on February 28, 2004. Before April 30, 1999, when we moved
into our current headquarters space, our headquarters were located in other
office buildings in Indianapolis, Indiana. We are continuing to lease some of
that space, which consists of two separate office suites totaling approximately
10,000 square feet, for use as training facilities. The leases under which we
lease both of these office spaces expire on March 1, 2004.
We lease space for our research and development facility in Deerfield Beach,
Florida, which consists of approximately 5,700 square feet. The lease for that
facility ends on April 30, 2003. We also lease space for our various sales,
services and development offices located in Carlsbad, California; Los Angeles,
California; San Francisco, California; Denver, Colorado; Milford, Connecticut;
Atlanta,
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Georgia; Norcross, Georgia; Stevensville, Maryland; St. Louis, Missouri;
Minneapolis, Minnesota; Marshalls Creek, Pennsylvania; Rockhill, South Carolina;
Reston, Virginia; France; Japan; and Korea. The majority of these leases are
short-term leases.
We believe that our existing facilities are adequate for our current needs
and that additional space will be available as needed.
LEGAL PROCEEDINGS
As of the date of this prospectus, we are not engaged in any legal
proceeding that we expect to have a material adverse effect on our business,
financial condition or results of operations.
See "Risk Factors--Infringement claims could adversely affect us" for a
description of correspondence recently received by us from a large, well
capitalized competitor claiming that our products utilize technologies pioneered
and patented by it.
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MANAGEMENT
EXECUTIVE OFFICERS, DIRECTORS AND SIGNIFICANT EMPLOYEES
The following table sets forth information about our executive officers,
directors and significant employees as of the date of this prospectus:
<TABLE>
<CAPTION>
NAME AGE POSITION
- --------------------------------------- --- ------------------------------------------------------------------
<S> <C> <C>
Donald E. Brown, M.D................... 43 Chairman of the Board, President and Chief Executive Officer
John R. Gibbs.......................... 48 Executive Vice President of Administration and Corporate
Development, Treasurer and Director
Michael J. Tavlin...................... 52 Chief Financial Officer
Jeremiah J. Fleming.................... 41 Vice President of Sales, The Americas
Michael E. Ford........................ 47 Vice President of Operations, Europe, Africa and Middle East
Douglas T. Shinsato.................... 49 Vice President of Operations, Asia/Pacific
Keith A. Midkiff....................... 37 Vice President of Finance and Controller
Joseph M. Adams (1).................... 44 Vice President of Market Communications
Michael D. Gagle, Ph.D. (1)............ 48 Chief Scientist
Robert A. Greising (2)................. 46 Secretary
Robert A. Compton...................... 43 Director
Jon Anton, D.Sc........................ 59 Director
Michael P. Cullinane................... 49 Director
</TABLE>
- ------------------------
(1) Significant employees, but not executive officers.
(2) Not an employee or executive officer.
DONALD E. BROWN, M.D. co-founded his third software company, Interactive
Intelligence, in October 1994 and has served as Chief Executive Officer since
April 1995 and President since inception. Dr. Brown also serves as Chairman of
the Board, a position he has held since July 1998. Dr. Brown has been a director
since inception. In March 1988, Dr. Brown co-founded Software Artistry, Inc., a
developer of customer support software that became a public company in March
1995 and was subsequently acquired by IBM Corporation in January 1998. At
Software Artistry, Dr. Brown served as Chief Executive Officer and director from
inception through September 1994. Dr. Brown's first software company was
acquired by Electronic Data Systems, Inc. in September 1987. Dr. Brown graduated
from the Indiana University School of Medicine in 1985. He also holds two
additional degrees from Indiana University, a M.S. in computer science and a
B.S. in physics.
JOHN R. GIBBS co-founded Interactive Intelligence in October 1994 and has
served as Executive Vice President of Administration and Corporate Development
since January 1995 and Treasurer since April 1995. Mr. Gibbs also served as
Secretary from April 1995 to January 1997. Mr. Gibbs has been a director since
April 1995. From March 1992 until October 1994, Mr. Gibbs was an independent
management consultant, serving mostly entrepreneurial and emerging growth
companies. He also has prior experience as an executive for high technology
companies. While a consultant, Mr. Gibbs served as the first Executive Director
of the Indiana Software Association. Mr. Gibbs holds a B.S. degree in business
economics and public policy from Indiana University. He also attended M.B.A.
school at Indiana University.
MICHAEL J. TAVLIN has served as Chief Financial Officer since joining
Interactive Intelligence in June 1999. From June 1986 to June 1999, Mr. Tavlin
served as Vice President-Treasurer and Secretary of Aliant Communications Inc.,
a telecommunications company, which was recently acquired by ALLTEL Corporation.
From January 1979 until June 1986, Mr. Tavlin served as a Senior Tax Manager
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with Coopers & Lybrand, which is now known as PricewaterhouseCoopers, and Touche
Ross & Co., which is now known as Deloitte & Touche. Prior to that time, Mr.
Tavlin was engaged in the practice of law. Mr. Tavlin holds a B.A. degree in
education from Oklahoma City University, a J.D. degree from the University of
Nebraska College of Law, and a LL.M. in Taxation degree from Washington
University in St. Louis.
JEREMIAH J. FLEMING has served as Vice President of Sales, The Americas,
since joining Interactive Intelligence in March 1997. From January 1995 to
February 1997, Mr. Fleming served as Vice President, Domestic Sales of Software
Artistry. From 1992 to December 1994, he held sales positions of increasing
responsibility at Software Artistry, including Manager, Central Region Sales
from January 1993 to December 1994. He performed various sales capacities at
Pansophic Systems, Inc., a developer of business software, from 1989 to 1991,
concluding as the Midwest Regional Manager. Mr. Fleming holds both a M.B.A.
degree and a B.A. degree in political science and philosophy from the University
of Missouri.
MICHAEL E. FORD has served as Vice President of Operations, Europe, Africa
and Middle East, since September 1998. Mr. Ford also served as Director of
Sales, Europe, Africa and Middle East from the time he joined Interactive
Intelligence in July 1997 until September 1998. From March 1994 to April 1997,
he served as Vice President of Sales of Enhanced Systems, Inc., a developer of
voice processing software. From March 1993 to March 1994, Mr. Ford served as
Vice President of Sales for Futurus Corporation, a developer of unified
messaging software. Mr. Ford's previous experience also includes establishing
and managing subsidiaries in Europe and Asia for Computer Corporation of America
and serving as Director of International Business for Hayes MicroComputer
Corporation. Mr. Ford holds a Masters in international business degree from the
University of South Carolina and a B.S. in business administration and economics
from the University of Pittsburgh in Kansas.
DOUGLAS T. SHINSATO has served as Vice President of Operations,
Asia/Pacific, since joining Interactive Intelligence in May 1998. From April
1997 until April 1998, Mr. Shinsato served as Vice President of Asia Pacific of
Genesys Telecommunications Laboratories, a developer of computer telephony
integration software. From December 1995 to April 1997, he served as Executive
Vice President-Japan for AT Kearney, a subsidiary of Electronic Data Systems,
Inc., an information technology services and systems integrator. From December
1988 until December 1995, Mr. Shinsato was a senior partner in Deloitte Touche,
Tohmatsu's management consulting operations in Japan. Mr. Shinsato holds a
M.B.A. degree from the University of Southern California and a J.D. degree from
the Stanford Law School.
KEITH A. MIDKIFF has served as Vice President of Finance since March 1999
and as Controller since joining Interactive Intelligence in February 1997. Mr.
Midkiff was Vice President of Finance and Chief Financial Officer of Alta
Analytics, Inc., a developer of data analysis software, from December 1996 to
February 1997. From June 1993 to December 1996, he served as Controller of
Software Artistry, which became a public company in March 1995. Mr. Midkiff
holds a M.B.A. degree from Indiana University and a dual B.S. degree in
accounting and finance from Ohio State University.
JOSEPH M. ADAMS has served as Vice President of Market Communications since
joining Interactive Intelligence in December 1996. In 1988, Mr. Adams co-founded
Software Artistry with Dr. Brown. From 1988 to November 1995, Mr. Adams served
in a number of senior roles at Software Artistry, including Vice President of
Market Communications. From November 1995 to December 1996, Mr. Adams was
retired. He also previously served as a director at Software Artistry and three
separate Indianapolis based charities. Mr. Adams holds a B.S. degree in business
economics from Indiana University.
MICHAEL D. GAGLE, PH.D. has served as Chief Scientist since March 1998. From
the time Dr. Gagle joined Interactive Intelligence in March 1995 until March
1998, he served as our Principal Software Engineer and Project Leader. Before
joining Interactive Intelligence, Dr. Gagle spent five years
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working on a variety of applied projects at AT&T Bell Labs. Dr. Gagle's previous
experience also includes co-founding and serving as Vice President for Research
and Development for Micro Data Base Systems, Inc., a developer of PC database
systems, working on the technical staff of Microsoft Corporation and serving
from January 1994 to September 1994 as a senior developer with the Regenstrief
Institute for Health Care Research. Dr. Gagle holds a Ph.D. in management
information systems and a B.S. in industrial management from Purdue University.
ROBERT A. GREISING has served as Secretary of Interactive Intelligence since
January 1997. He also served as a director from January 1997 to May 1999. Mr.
Greising is a partner in Krieg DeVault Alexander & Capehart, LLP, a law firm
located in Indianapolis, Indiana. He practices in the general corporate,
corporate finance and technology areas and chairs the Technology and Electronic
Commerce Practice Group of the firm. Mr. Greising also has experience with the
purchase and sale of software companies and the licensing of software. Mr.
Greising received his B.A. degree from DePauw University and his J.D. and M.B.A.
degrees from Washington University in St. Louis.
ROBERT A. COMPTON has served as a director of Interactive Intelligence since
April 1995. He also served as Chairman of the Board from August 1995 to July
1998. Mr. Compton is currently President, Neurological Technologies Division of
Medtronic, Inc., a manufacturer of image guided surgery systems and medical
devices. From May 1997 until its acquisition, Mr. Compton was President and
Chief Operating Officer of Sofamor Danek Group, Inc., a publicly held medical
device manufacturer acquired by Medtronic, Inc. in January 1999. From 1988 until
May 1997, he served as general partner of CID Equity Partners, an
Indianapolis-based venture capital firm. From 1985 to 1988, Mr. Compton served
as Investment Manager with First Chicago Venture Capital. Mr. Compton has also
served as director for three publicly held companies, including Software
Artistry and Sofamor Danek Group, Inc., and over twelve privately held
companies. Mr. Compton holds a M.B.A. degree from Harvard University, and
received his undergraduate degree from Principia College.
JON ANTON, D.SC. has served as a director of Interactive Intelligence since
May 1999. Dr. Anton is a researcher in the Purdue Call Center for
Customer-Driven Quality in the Department of Consumer Sciences at Purdue
University, a position he has held since 1993. He specializes in enhancing
customer service strategy through inbound call centers and teleweb centers using
telecommunications and computer technology, as well as the Internet. Dr. Anton
has assisted over 400 companies in the design and implementation of inbound and
outbound call centers. Dr. Anton holds Doctorate of Science and M.S. degrees in
technology from Harvard University, a M.S. degree from the University of
Connecticut and a B.S. degree from the University of Notre Dame. He also
completed the Executive Education program at the Graduate School of Business of
Stanford University.
MICHAEL P. CULLINANE has served as a director of Interactive Intelligence
since May 1999. Mr. Cullinane is Executive Vice President and Chief Financial
Officer of PLATINUM TECHNOLOGY, INC., a publicly-held software company. He
joined PLATINUM in 1988 as its Chief Financial Officer. PLATINUM was recently
acquired by Computer Associates International. Mr. Cullinane is also a director
of Platinum Entertainment, Inc., a recorded music producer and licensing
company, Vasco Data Security, Inc., a security hardware and software company,
and Made2Manage Systems, Inc., an enterprise software company. Mr. Cullinane
holds a Bachelor's degree in business administration from the University of
Notre Dame.
Executive officers of Interactive Intelligence serve at the discretion of
our board of directors. There is no family relationship between any of our
directors or executive officers.
BOARD OF DIRECTORS
Our board of directors is divided into three classes that serve staggered
three-year terms. The term of the first class will expire at the annual meeting
of stockholders in 2000, the term of the second class
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will expire at the annual meeting of stockholders in 2001, and the term of the
third class will expire at the annual meeting of stockholders in 2002. The terms
of our current directors will expire as follows:
- 2000--Dr. Anton;
- 2001--Mr. Cullinane and Mr. Gibbs; and
- 2002--Dr. Brown and Mr. Compton
COMMITTEES OF THE BOARD OF DIRECTORS
We have an Audit Committee and a Compensation and Stock Option Committee.
The Audit Committee consists of Dr. Anton and Mr. Cullinane. The Compensation
and Stock Option Committee consists of Mr. Compton, Dr. Anton and Mr. Cullinane.
The responsibilities of the Audit Committee are to recommend the appointment of
independent auditors, review with the independent auditors the scope and results
of the audit engagement, establish and monitor our financial policies and
control procedures, review and monitor the provisions of non-audit services by
our auditors and review all potential conflict of interest situations. See
"Certain Transactions." The responsibilities of the Compensation and Stock
Option Committee are to review, determine and establish the salaries, bonuses
and other compensation of our executive officers and to administer our stock
option plans.
COMPENSATION OF DIRECTORS
No compensation was paid during 1998 to any of our directors for services as
a director. We will reimburse all directors for reasonable out-of-pocket
expenses incurred in connection with attending meetings of our board, including
committee meetings, but do not intend to pay them any cash stipends.
Non-employee directors will participate in our Outside Directors Stock Option
Plan. In connection with the election of Dr. Anton and Mr. Cullinane as
directors, we granted each of them an option to purchase 15,000 shares of our
common stock at an exercise price equal to the deemed fair market value of our
common stock on the date of the grant, based upon a determination by our board
of directors. See "Executive Compensation--Stock Option Plans--Outside Directors
Stock Option Plan" and "--Other Option Plans."
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EXECUTIVE COMPENSATION
SUMMARY COMPENSATION TABLE
The following table summarizes compensation paid by us for services rendered
in all capacities to us during 1998 to our Chief Executive Officer and to each
of our four other most highly compensated executive officers, based on salary
and bonus earned during 1998 (the "Named Executive Officers"). The amounts shown
as bonus were earned during 1998, but paid in the following year. The amounts
shown as long term compensation consist solely of options to acquire shares of
common stock. We have never granted stock appreciation rights or restricted
stock.
<TABLE>
<CAPTION>
LONG TERM
COMPENSATION
-------------
AWARDS
ANNUAL COMPENSATION -------------
------------------------------------- SECURITIES
OTHER ANNUAL UNDERLYING
NAME AND PRINCIPAL POSITION SALARY BONUS COMPENSATION OPTIONS
- --------------------------------------------------------- ---------- ---------- ------------- -------------
<S> <C> <C> <C> <C>
Donald E. Brown, M.D.
Chairman, President and Chief Executive
Officer................................................ $ 100,000(1) $ -- $ -- 67,500
John R. Gibbs
Executive Vice President of Administration and
Corporate Development and Treasurer.................... $ 80,000 $ -- $ 5,535(2) --
Jeremiah J. Fleming
Vice President of Sales, The Americas.................. $ 154,808 $ 106,327 $ -- 11,250
Michael E. Ford
Vice President of Operations, Europe, Africa, Middle
East................................................... $ 91,032 $ 57,026 $ 73,359(3) 30,000
Douglas T. Shinsato
Vice President of Operations, Asia/Pacific............. $ 100,000 $ 66,666 $ 55,077(4) 75,000
</TABLE>
- ------------------------
(1) Reflects salary earned during 1998, but deferred, without interest, at the
election of Dr. Brown through July 1, 1999. This amount will be paid out of
the net proceeds of this offering.
(2) Reflects medical premiums paid by us while we were an S-corporation, which
are considered taxable income, and related tax gross-up payments.
(3) Reflects relocation expenses.
(4) Reflects housing allowance.
OPTION GRANTS DURING 1998
The following table sets forth information with respect to options granted
under our stock option plans to the Named Executive Officers during 1998. The
dollar amounts under the potential realizable value columns are the result of
calculations that increase, at the 5% and 10% rates set by the Securities and
Exchange Commission, the assumed initial public offering price of $12.00 per
share and, therefore, are not intended to forecast possible future appreciation,
if any, of the price of our common stock. We
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did not use an alternative formula for a grant date valuation, as we are not
aware of any formula which will determine with reasonable accuracy a present
value based on future unknown or volatile factors.
<TABLE>
<CAPTION>
INDIVIDUAL GRANTS
------------------------------------------------------- POTENTIAL REALIZABLE VALUE
NUMBER OF AT ASSUMED ANNUAL RATES OF
SECURITIES % OF TOTAL STOCK PRICE APPRECIATION
UNDERLYING OPTIONS GRANTED EXERCISE OR FOR OPTION TERM
OPTIONS TO EMPLOYEES IN BASE PRICE EXPIRATION --------------------------
NAME GRANTED FISCAL YEAR (PER SHARE) DATE 5% 10%
- --------------------------------- ----------- --------------- ------------- ---------- ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
Donald E. Brown, M.D............. 67,500(1) 9.2% $ 3.00 09/22/08 $ 1,116,905 $ 1,898,431
John R. Gibbs.................... -- -- -- -- -- --
Jeremiah J. Fleming.............. 11,250(2) 1.5% 3.00 08/31/08 186,151 316,405
Michael E. Ford.................. 30,000(2) 4.1% 3.00 08/31/08 496,402 843,747
Douglas T. Shinsato.............. 75,000(2) 10.3% 2.67 05/29/08 1,265,755 2,134,118
</TABLE>
- ------------------------
(1) Non-qualified stock options to purchase our common stock, granted at 100% of
the deemed fair market value of the common stock on the date of grant, based
upon a determination by our board of directors. The options were immediately
exercisable as of the date of grant.
(2) Incentive stock options to purchase our common stock, granted at 100% of the
deemed fair market value of the common stock on the date of grant, based
upon a determination by our board of directors. The options are exercisable
at the rate of 20% per year, beginning on the first anniversary of the date
of grant.
OPTION EXERCISES DURING 1998 AND YEAR-END OPTION VALUES
The following table sets forth information about the exercise of options to
acquire our common stock by the Named Executive Officers during 1998, and
year-end option amounts and values. The value realized upon the exercise of
options is calculated based on the difference between the assumed initial public
offering price of $12.00 per share and the option exercise price, multiplied by
the number of shares to which the exercise relates. The value of unexercised
in-the-money options at fiscal year-end is calculated based on the difference
between the assumed initial public offering price of $12.00 per share and the
option exercise price, multiplied by the number of shares underlying the option.
<TABLE>
<CAPTION>
NUMBER OF SECURITIES VALUE OF UNEXERCISED
UNDERLYING UNEXERCISED IN-THE- MONEY OPTIONS AT
SHARES OPTIONS AT FISCAL YEAR-END FISCAL YEAR-END
ACQUIRED ON VALUE -------------------------- ---------------------------
NAME EXERCISE REALIZED EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
- ----------------------------- ----------- ------------ ----------- ------------- ------------ -------------
<S> <C> <C> <C> <C> <C> <C>
Donald E. Brown, M.D......... -- $ -- 67,500 -- $ 607,500 $ --
John R. Gibbs................ 399,750 4,745,033 208,583 -- 2,475,874 --
Jeremiah J. Fleming.......... 22,500 250,425 2,250 110,250 25,043 1,203,120
Michael E. Ford.............. -- -- 6,000 54,000 66,780 537,120
Douglas T. Shinsato.......... -- -- -- 75,000 -- 699,750
</TABLE>
STOCK OPTION PLANS
1995 INCENTIVE STOCK OPTION PLAN
On August 14, 1995, the board of directors and the then sole stockholder
adopted, and on November 11, 1997 and July 12, 1999, the board of directors
amended, the 1995 Incentive Stock Option Plan. Under the 1995 Incentive Stock
Option Plan, we had authority to award incentive stock options for up to
3,750,000 shares of our common stock to our employees, including officers.
The 1995 Incentive Stock Option Plan was administered by the board of
directors until November 1997, when it began to be administered by an
administrative committee of the board.
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Subject to the terms of the 1995 Incentive Stock Option Plan, the board of
directors or the administrative committee had the sole discretion and authority
to select those officers and employees to whom awards were made, to designate
the number of shares to be covered by each award, to establish vesting
schedules, to specify all other terms of the awards, subject to specified
restrictions, and to interpret the 1995 Incentive Stock Option Plan.
Options granted under the 1995 Incentive Stock Option Plan generally become
vested 20% per year beginning on the first anniversary of the date of grant or
initial hire. Unvested options expire on the date the grantee's employment
terminates. Generally if the employment of a grantee of stock options under the
1995 Incentive Stock Option Plan terminates for any reason other than death or
disability, that grantee's vested options expire 30 days after the date of
termination. If the termination is on account of death or disability, the vested
options generally expire six months after termination. The 1995 Incentive Stock
Option Plan also provides that the board of directors can accelerate the vesting
of outstanding awards in the event of specified changes in control of our
company.
Upon stockholder approval of the new 1999 Stock Option and Incentive Plan on
April 16, 1999, the board of directors determined that no new options will be
granted under the 1995 Incentive Stock Option Plan. Through April 16, 1999,
options for an aggregate of 2,016,735 shares of common stock were outstanding
under the 1995 Incentive Stock Option Plan.
1995 NONSTATUTORY STOCK OPTION INCENTIVE PLAN
On August 14, 1995, the board of directors and the then sole stockholder
adopted the 1995 Nonstatutory Stock Option Incentive Plan. Under the 1995
Nonstatutory Plan, we had authority to award stock options for up to 375,000
shares of our common stock to our employees, directors and consultants.
The 1995 Nonstatutory Plan was administered by the board of directors.
Subject to the terms of the 1995 Nonstatutory Plan, the board of directors had
the sole discretion and authority to select those individuals to whom awards
were made, to designate the number of shares to be covered by each award, to
establish vesting schedules, to specify all other terms of the awards, subject
to specified restrictions, and to interpret the 1995 Nonstatutory Plan.
Subject to the discretion of the board of directors, generally if the
service of a grantee of stock options terminates for any reason other than death
or disability, that grantee's options expire at the date of termination, other
than options held by a non-employee director. If the termination is on account
of death, the vested options generally expire 12 months after death. If the
termination is on account of disability, the vested options generally expire six
months after termination. The 1995 Nonstatutory Plan also provides that the
board of directors can accelerate the vesting of outstanding awards in the event
of specified changes in control of our company.
Upon stockholder approval of the new 1999 Stock Option and Incentive Plan
and the new Outside Directors Stock Option Plan on April 16, 1999, the board of
directors determined not to issue any further options under the 1995
Nonstatutory Plan. Through that date, options for an aggregate of 14,250 shares
of common stock were outstanding under the 1995 Nonstatutory Plan.
1999 STOCK OPTION AND INCENTIVE PLAN
On April 14, 1999, the board of directors adopted, and on April 16, 1999,
the stockholders approved, the 1999 Stock Option and Incentive Plan (the "1999
Stock Option Plan"). Under the 1999 Stock Option Plan, we may award stock
options and shares of restricted stock to our officers, key employees,
consultants and other individuals as may be determined by the Compensation and
Stock Option Committee. The aggregate number of shares of common stock that may
be awarded under the
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1999 Stock Option Plan is 3,750,000, subject to adjustment in specified events.
No individual participant may receive awards for more than 250,000 shares in any
calendar year.
The 1999 Stock Option Plan is administered by the Compensation and Stock
Option Committee (the "Committee"). Subject to the terms of the 1999 Stock
Option Plan, the Committee has the sole discretion and authority to select those
officers, key employees and consultants to whom awards will be made, to
designate the number of shares to be covered by each award, to establish vesting
schedules, to specify all other terms of the awards, subject to specified
restrictions, and to interpret the 1999 Stock Option Plan.
With respect to stock options under the 1999 Stock Option Plan that are
intended to qualify as incentive stock options under Section 422 of the Internal
Revenue Code, the option price must be at least 100% of the fair market value of
a share of common stock on the date of the grant of the stock option. For a
holder of more than 10% of the common stock, the option price must be at least
110% of the fair market value on the date of the grant of the stock option.
Incentive stock options may only be granted to employees. The Committee will
establish, at the time the options are granted, the exercise price of options
that do not qualify as incentive stock options ("non-qualified stock options").
An option granted under the 1999 Stock Option Plan may not be exercised more
than ten years from the date of grant, unless the Committee prescribes a shorter
period or unless some types of employment terminations require a shorter period.
An incentive stock option granted to a holder of more than 10% of the common
stock may not be exercised more than five years from the date of grant, unless
the Committee prescribes a shorter period or unless some types of employment
terminations require a shorter period. Under the 1999 Stock Option Plan, the
Committee may grant awards of restricted shares, in which case the grantee would
be granted shares of common stock, subject to such forfeiture provisions and
transfer restrictions as the Committee determines. Awards of options and shares
of restricted stock as to which restrictions have not lapsed are not
transferable other than under the laws of descent and distribution.
Subject to the discretion of the Committee, generally if the employment of a
grantee of stock options is terminated for cause, or the employment of a grantee
of restricted shares is terminated for any reason other than death, disability
or retirement, that grantee's options expire and any restricted shares are
forfeited at the date of termination. A portion of a grantee's restricted shares
automatically become vested upon termination by reason of death or disability.
The board of directors may terminate or amend the 1999 Stock Option Plan at any
time; however, subject to certain exceptions, a grantee's consent must be
obtained if the change would impair the rights of that grantee and stockholder
approval must be obtained if required by applicable law or if the change
involves some types of increases in the number of shares subject to the 1999
Stock Option Plan. The 1999 Stock Option Plan also provides for accelerated
vesting of outstanding awards in the event of a change in control of our
company. As of June 30, 1999, options for an aggregate of 223,125 shares of
common stock were outstanding under the 1999 Stock Option Plan. Under the 1999
Stock Option Plan, we may make loans to grantees with respect to the income
taxes payable on restricted stock and the option price and income taxes payable
on the exercise of options.
OUTSIDE DIRECTORS STOCK OPTION PLAN
On April 14, 1999, the board of directors adopted, and on April 16, 1999,
the stockholders approved, an Outside Directors Stock Option Plan (the
"Directors Plan"). The Directors Plan was amended and restated by the board of
directors and the stockholders in July 1999. The Directors Plan reserves for
issuance 150,000 shares of our common stock, subject to adjustment in certain
events. Pursuant to the Directors Plan, each non-employee director will be
automatically granted an option to purchase 5,000 shares of common stock on June
1 of each year beginning June 1, 2000. The option exercise price per share will
be the fair market value of one share of our common stock on the date of grant.
Each option becomes exercisable six months following the date of grant and
expires ten years
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following the date of grant. Subject to some exceptions, options may be
exercised by the holder only if he has been in continuous service on the board
of directors at all times since the grant of the option.
OTHER OPTION PLANS
On September 22, 1998, the board of directors granted an option to purchase
67,500 shares of our common stock to Dr. Brown. The board of directors granted
this option in consideration for guarantees by Dr. Brown of some of our
commercial lines of credit and equipment leases. The exercise price for this
option is $3.00, the deemed fair market value of our common stock on the date of
grant, based upon a determination by our board of directors. The option was
immediately exercisable in full as of the date of grant and can be exercised any
time within 10 years from the date of grant.
On May 26, 1999, the board of directors granted an option to purchase 15,000
shares of our common stock to each of Dr. Anton and Mr. Cullinane in
consideration of their agreeing to become directors. The exercise price for
these options is $9.33, the deemed fair market value of our common stock on the
date of grant, based upon a determination by our board of directors. Options for
7,500 of the shares become exercisable one year after the date of grant and the
balance becomes exercisable two years after the date of grant. The options
expire ten years after the date of grant.
EMPLOYMENT AND NON-COMPETITION AGREEMENTS
On January 2, 1995, we entered into a Consulting and Employment Agreement
with John R. Gibbs, which was amended on May 14, 1999. Under the agreement, Mr.
Gibbs serves as Executive Vice President of Administration and Corporate
Development. The term of Mr. Gibbs' employment was initially for 18 months
beginning July 1, 1995; however, the agreement provides that the term
automatically renews for successive one-year terms unless either we or Mr. Gibbs
gives notice. The agreement provides that Mr. Gibbs will receive an annual
salary of $60,000, which we may increase at our discretion, and a one-time grant
of incentive stock options to purchase up to 833,333 shares of our common stock.
We have since increased Mr. Gibbs' annual salary. See "--Summary Compensation
Table." Mr. Gibbs is also eligible to participate in employee benefit plans
generally available to our employees. The agreement also contains
non-competition, non-solicitation and non-disclosure provisions, which are in
effect during the term of the agreement. The non-disclosure provisions in Mr.
Gibbs' agreement continue indefinitely after his termination of employment. The
non-compete provisions continue for a period of 12 months after his termination
of employment for any reason, as do the non-solicitation provisions unless he is
terminated by us without cause. If his employment is terminated by us without
cause, or in specified circumstances following a change of control, Mr. Gibbs
will receive severance pay equal to 12 months' salary. Under the agreement, Mr.
Gibbs also served as a consultant to the Company from January 2, 1995 until June
30, 1995.
On June 30, 1997, we entered into an Employment Agreement with Michael E.
Ford. The agreement provides that Mr. Ford will serve as Director of Sales in
Europe, Africa and Middle East. The term of Mr. Ford's employment agreement is
two years; however, the agreement provides that the term automatically renews
for successive one-year terms unless either we or Mr. Ford gives notice. The
agreement provides that Mr. Ford will receive an annual salary of $85,000, which
we may increase or decrease at our discretion with notice, and a one-time grant
of incentive stock options to purchase up to 30,000 shares of our common stock
under our 1995 Incentive Stock Option Plan. We have since increased Mr. Ford's
annual salary. See "--Summary Compensation Table." Mr. Ford also participates in
the bonus compensation program applicable to our sales employees and other
employee benefit plans generally available to our employees. The agreement also
contains non-competition and non-solicitation provisions, which are in effect
during the term of the agreement and for a period of 18 months following his
termination for any reason, and non-disclosure provisions. If his employment is
terminated by us for any reason other than for cause, Mr. Ford will receive
severance pay equal to one month's salary.
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On May 1, 1998, we entered into an Employment Agreement with Douglas T.
Shinsato. The agreement provides that Mr. Shinsato will serve as Vice
President-Asia Pacific. The term of Mr. Shinsato's employment agreement is two
years; however, the agreement provides that the term automatically renews for
successive one-year terms unless either we or Mr. Shinsato gives notice. The
agreement provides that Mr. Shinsato will receive an annual salary of $150,000,
which we may increase or decrease at our discretion with notice, and a one-time
grant of incentive stock options to purchase up to 75,000 shares of our common
stock under our 1995 Incentive Stock Option Plan. We have since increased Mr.
Shinsato's annual salary. See "--Summary Compensation Table." Mr. Shinsato also
participates in the bonus compensation program applicable to our sales employees
and other employee benefit plans generally available to our employees. The
agreement also contains non-competition and non-solicitation provisions, which
are in effect during the term of the agreement and for a period of 18 months
following his termination for any reason, and non-disclosure provisions. If his
employment is terminated by us for any reason other than for cause, Mr. Shinsato
will receive severance pay equal to one month's salary.
On March 1, 1997, we entered into an Employment Agreement with Jeremiah J.
Fleming, which was amended on May 14, 1999. The agreement provides that Mr.
Fleming will serve as Vice President of Sales, The Americas. The term of Mr.
Fleming's employment agreement is two years; however, the agreement provides
that the term automatically renews for successive one-year terms unless either
we or Mr. Fleming gives notice. The agreement provides that Mr. Fleming will
receive an annual salary of $125,000, which we may increase or decrease at our
discretion with notice, and a one-time grant of incentive stock options to
purchase up to 112,500 shares of our common stock under our 1995 Incentive Stock
Option Plan. We have since increased Mr. Fleming's annual salary. See "--Summary
Compensation Table." Mr. Fleming also participates in the bonus compensation
program applicable to our sales employees and other employee benefit plans
generally available to our employees. The agreement also contains
non-competition, non-solicitation and non-disclosure provisions, which are in
effect during the term of the agreement. The non-disclosure provisions in Mr.
Fleming's agreement continue indefinitely after termination of his employment.
The non-compete provisions continue for a period of 12 months after termination,
as do the non-solicitation provisions unless he is terminated by us without
cause. If his employment is terminated by us without cause, or in specified
circumstances following a change of control, Mr. Fleming will receive severance
pay equal to one year's total compensation.
On June 1, 1999, we entered into an Employment Agreement with Michael J.
Tavlin, which was amended on that same date. The agreement provides that Mr.
Tavlin will serve as Chief Financial Officer. The term of Mr. Tavlin's
employment agreement is two years; however, the agreement provides that the term
automatically renews for successive one-year terms unless either we or Mr.
Tavlin gives notice. The agreement provides that Mr. Tavlin will receive an
annual salary of $140,000, which we may increase or decrease at our discretion
with notice, and a one-time grant of stock options to purchase up to 82,500
shares of our common stock under our 1999 Stock Option and Incentive Plan. Mr.
Tavlin is also eligible for an annual bonus of up to $40,000 per year. The
agreement also contains non-competition, non-solicitation and non-disclosure
provisions, which are in effect during the term of the agreement. The
non-disclosure provisions in Mr. Tavlin's agreement continue indefinitely after
termination of his employment. The non-compete and non-solicitation provisions
continue for a period of 18 months after termination. If his employment is
terminated by us without cause, Mr. Tavlin will receive severance pay equal to
one month's salary. If Mr. Tavlin is terminated without cause after a change in
control, his salary and medical benefits will continue for one year after
termination.
We do not have employment or non-competition agreements with any other Named
Executive Officers.
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COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
During 1998, Donald E. Brown, M.D. and John R. Gibbs served as the only
members of the Administrative Committee, which administered our stock option
plans during 1998. The board of directors had all other responsibilities to
review, determine and establish the salaries, bonuses and other compensation of
our executive officers during 1998. Our board of directors during 1998 consisted
of Messrs. Brown, Compton, Gibbs and Greising. Messrs. Brown and Gibbs continue
to serve as officers and employees of Interactive Intelligence. Mr. Greising is
not an employee, but has been our Secretary since January 1997. Except for Dr.
Brown, none of the members of the Administrative Committee or our board of
directors during 1998 were involved in a relationship requiring disclosure as an
interlocking executive officer or director or under Item 404 of Regulation S-K.
Dr. Brown is a director and 25% stockholder of Intelligent Response, Inc., a
company that provides us with telemarketing and fulfillment services. Dr. Brown
has also loaned funds to us from time to time prior to this offering, has
elected to defer the payment of his salary, and has advanced other non-interest
bearing accounts payable to us. In addition, he has guaranteed our commercial
lines of credit, our equipment leases and two of our office leases. See "Certain
Transactions." Effective April 14, 1999, we no longer have an Administrative
Committee, and the Compensation and Stock Option Committee administers our stock
option plans. See "Management--Committees of the Board of Directors.
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CERTAIN TRANSACTIONS
RELATIONSHIP WITH DIALOGIC
Dialogic Investment Corporation owned 5.6% of the shares of our common stock
as of June 30, 1999. We have entered into agreements with Dialogic Corporation,
which is the parent of Dialogic Investment Corporation. Dialogic Corporation was
recently acquired by Intel Corporation. Under a Strategic Relationship Agreement
between us and Dialogic Corporation, which commenced on March 1, 1999, Dialogic
Corporation has agreed to provide us with voice processing boards for our use
related to EIC. Dialogic Corporation has also agreed to provide us with rebate
incentives and marketing, sales and technical support. This agreement is
non-exclusive, and Dialogic Corporation is free to market any of the voice
processing boards to other customers, including companies that may compete with
us. In addition, while we have agreed to provide Dialogic Corporation notice and
a reasonable opportunity to meet our current and future product needs, we are
also free to purchase competitive products if required for our business
purposes.
The Strategic Relationship Agreement also provides that, at no cost to us,
Dialogic Corporation will provide us with an inventory of voice processing
boards valued in an amount up to $100,000, to be used exclusively for our
internal developmental and testing purposes. We may not resell this inventory
without written permission from Dialogic Corporation until after the end of the
three-year term of this arrangement. Dialogic Corporation's inventory
obligations under the Strategic Relationship Agreement terminate if we begin to
purchase a substantial portion of competitive products from other vendors. We
have already received all of the voice processing boards that Dialogic
Corporation is obligated to deliver. We believe that the Strategic Relationship
Agreement is on terms at least as favorable as we could obtain from an unrelated
third party.
We are also a party to a Support Services Agreement with Dialogic
Corporation relating to technical and professional support services to be
provided by Dialogic Corporation to us arising from the installation,
configuration, programming and maintenance of specified Dialogic Corporation
products. The annual fee is $50,000, which was waived for one year beginning
March 1, 1999, plus reasonable travel and out-of-pocket expenses. We also incur
additional per hour fees for specified services such as standby coverage,
service calls within the standby period, on-site technical support and
consulting services. The Support Services Agreement also provides that we will
not solicit for employment any Dialogic Corporation personnel performing
services under the agreement. We believe that the Support Services Agreement is
on terms at least as favorable as we could obtain from an unrelated third party.
We paid Dialogic Corporation $2,000 in 1996, $905,000 in 1997 and $871,000
in 1998 for voice processing boards and related technology and services. We
believe that these amounts were no greater than amounts which we would have paid
to unrelated third parties for similar products and services.
TELEMARKETING SERVICES
Dr. Brown is a director and 25% stockholder of Intelligent Response, Inc., a
telemarketing company, and Dr. Brown's brother is the president of that company.
In 1998, Intelligent Response began providing us with telemarketing and
fulfillment services in support of our marketing efforts. We paid Intelligent
Response $111,000 in 1998 for these services. We believe that the amounts paid
to Intelligent Response were no greater than amounts that we would have paid to
unrelated third parties for similar services. We intend to continue to use
Intelligent Response to provide telemarketing and fulfillment services.
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<PAGE>
INSIDER ADVANCES
From time to time before this offering, Dr. Brown loaned funds to us. These
loans have an interest rate of 10% and are due on December 31, 2001. All amounts
outstanding under these loans will be repaid with a portion of the net proceeds
from this offering. As of June 30, 1999, the aggregate amount outstanding under
these loans was $7.3 million, including accrued interest. We incurred no
interest expense on these loans in 1996, $228,000 in interest expense in 1997
and $686,000 in interest expense in 1998. In addition to these loans, Dr. Brown
has also elected to defer, without interest, the payment of all of his salary
from July 1, 1996 through June 30, 1999. As of June 30, 1999, we owed Dr. Brown
$214,000 in deferred compensation and $335,000 in other non-interest bearing
accounts payable. All of Dr. Brown's deferred compensation and these other
non-interest bearing accounts payable will be paid with a portion of the net
proceeds from this offering.
GUARANTEES OF OUR OBLIGATIONS
From time to time before this offering, Dr. Brown has guaranteed our
commercial lines of credit and our equipment leases. In consideration for a
portion of these guarantees, we granted an option to purchase 67,500 shares of
our common stock to Dr. Brown on September 22, 1998. The stock option has an
exercise price of $3.00 per share, which was the deemed fair market value of our
common stock on the date of grant, based upon a determination by our board of
directors, and the option was immediately exercisable in full as of the date of
grant. In connection with this offering, we intend to replace our existing
credit facilities with a new unsecured line of credit from our primary lender,
which Dr. Brown will not be required to guarantee. In addition, Dr. Brown has
personally guaranteed two of our office leases. These guarantees and the
guarantee of our equipment leases will continue after this offering.
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<PAGE>
PRINCIPAL AND SELLING STOCKHOLDERS
John R. Gibbs, the co-founder of Interactive Intelligence and a Named
Executive Officer, has granted the underwriters an option to purchase up to
70,000 shares of our common stock to cover over-allotments.
The following table sets forth information regarding the beneficial
ownership of our common stock as of June 30, 1999 by Mr. Gibbs and by the
following individuals or groups:
- each person, or group of affiliated persons, who is known by us to
beneficially own more than 5% of the outstanding shares of our common
stock;
- each director;
- each Named Executive Officer; and
- all directors and executive officers as a group.
Unless otherwise noted, we believe that all persons named in the table have sole
voting and investment power with respect to all shares beneficially owned by
them. Percentage ownership in the following table is based on 10,700,121 shares
of our common stock outstanding as of June 30, 1999 and 13,370,121 shares of our
common stock outstanding after this offering, assuming that the underwriters do
not exercise their over-allotment options.
<TABLE>
<CAPTION>
PERCENTAGE OF SHARES
OUTSTANDING
NUMBER OF SHARES --------------------------
BENEFICIALLY BEFORE THIS AFTER THIS
NAME OWNED OFFERING OFFERING
- ----------------------------------------------------------------------- ----------------- ------------- -----------
<S> <C> <C> <C>
Donald E. Brown, M.D.(1)............................................... 8,675,079(2) 80.6% 64.6%
John R. Gibbs(1)....................................................... 958,896 9.0% 7.2%
Jeremiah J. Fleming.................................................... 47,250(3) * *
Michael E. Ford........................................................ 12,000(4) * *
Douglas T. Shinsato.................................................... 15,000(5) * *
Jon Anton, D.Sc........................................................ -- -- --
Robert A. Compton...................................................... 22,500 * *
Michael P. Cullinane................................................... -- -- --
Dialogic Investment Corporation(6)..................................... 600,000 5.6% 4.5%
All directors and executive officers as a group (10 persons)........... 9,745,725(7) 90.3% 72.4%
</TABLE>
- ------------------------
* Less than 1%.
(1) The address for these stockholders is 8909 Purdue Road, Suite 300,
Indianapolis, IN 46268.
(2) Includes 67,500 shares subject to stock options exercisable within 60 days
after June 30, 1999.
(3) Includes 2,250 shares subject to stock options exercisable within 60 days
after June 30, 1999.
(4) Represents 12,000 shares subject to stock options exercisable within 60 days
after June 30, 1999.
(5) Represents 15,000 shares subject to stock options exercisable within 60 days
after June 30, 1999.
(6) The address for this stockholder is 1515 Route Ten, Parsippany, NJ 07054.
(7) Includes 96,750 shares subject to stock options exercisable within 60 days
after June 30, 1999.
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<PAGE>
DESCRIPTION OF CAPITAL STOCK
The following description of our capital stock does not purport to be
complete and is subject in all respects to applicable Indiana law and to the
provisions of our Restated Articles of Incorporation and By-Laws, copies of
which have been filed as exhibits to the Registration Statement of which this
prospectus is a part.
Our authorized capital stock consists of 100,000,000 shares of common stock,
$.01 par value per share, and 10,000,000 shares of preferred stock, without par
value. On June 30, 1999, after giving effect to this offering, and assuming that
the underwriters do not exercise their over-allotment options, there would have
been 13,370,121 shares of common stock issued and outstanding and no shares of
preferred stock issued and outstanding. An additional 2,256,954 shares of common
stock were issuable upon exercise of outstanding options granted as of June 30,
1999 under our stock option plans. See "Executive Compensation--Stock Option
Plans."
COMMON STOCK
Each holder of common stock is entitled to one vote per share of record on
all matters to be voted upon by the stockholders. Holders do not have cumulative
voting rights in the election of directors or any other matter. Subject to the
preferential rights of the holders of any preferred stock that may at the time
be outstanding, each share of common stock will entitle the holder of that share
to an equal and ratable right to receive dividends when, if and as declared from
time to time by the board of directors out of legally available funds. We do not
anticipate paying cash dividends in the foreseeable future. See "Dividend
Policy."
In the event of our liquidation, dissolution or winding up, the holders of
common stock will be entitled to share ratably in all assets remaining after
payments to creditors and after satisfaction of the liquidation preference, if
any, of the holders of any preferred stock that may at the time be outstanding.
Holders of common stock have no preemptive or redemption rights and will not be
subject to further calls or assessments by us. All of the shares of common stock
to be issued and sold in this offering will be, immediately upon consummation of
this offering, validly issued, fully paid and non-assessable.
PREFERRED STOCK
The authorized preferred stock is available for issuance from time to time
at the discretion of the board of directors without stockholder approval. The
board of directors has the authority to prescribe for each series of preferred
stock it establishes the number of shares in that series, the number of votes,
if any, to which the shares in that series are entitled, the consideration for
the shares in that series, and the designations, powers, preferences and other
rights, qualifications, limitations or restrictions of the shares in that
series. Depending upon the rights prescribed for a series of preferred stock,
the issuance of preferred stock could have an adverse effect on the voting power
of the holders of common stock and could adversely affect holders of common
stock by delaying or preventing a change in control of us, making removal of our
present management more difficult or imposing restrictions upon the payment of
dividends and other distributions to the holders of common stock.
AUTHORIZED BUT UNISSUED SHARES
Indiana law does not require stockholder approval for any issuance of
authorized shares. Authorized but unissued shares may be used for a variety of
corporate purposes, including future public or private offerings to raise
additional capital or to facilitate corporate acquisitions. One of the effects
of the existence of authorized but unissued shares may be to enable the board of
directors to issue shares to persons friendly to current management, which
issuance could render more difficult or discourage an attempt to obtain control
of us by means of a merger, tender offer, proxy contest or
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<PAGE>
otherwise, and thereby protect the continuity of current management and possibly
deprive the stockholders of opportunities to sell their shares of common stock
at prices higher than prevailing market prices.
CERTAIN PROVISIONS OF RESTATED ARTICLES OF INCORPORATION AND BY-LAWS
Certain provisions of our Restated Articles of Incorporation and By-Laws may
delay or make more difficult unsolicited acquisitions or changes of control of
us. These provisions could have the effect of discouraging third parties from
making proposals involving an unsolicited acquisition or change in control of
us, although these proposals, if made, might be considered desirable by a
majority of our stockholders. These provisions may also have the effect of
making it more difficult for third parties to cause the replacement of the
current management without the concurrence of the board of directors. These
provisions include:
- the division of the board of directors into three classes serving
staggered terms of office of three years (see "Management--Executive
Officers, Directors and Significant Employees");
- the availability of authorized but unissued shares of stock for issuance
from time to time at the discretion of the board of directors (see
"--Authorized But Unissued Shares");
- provisions allowing the removal of directors only for cause and only upon
a 66 2/3% stockholder vote taken at a meeting called for that purpose;
- permitting only the board of directors, the Chairman, the Chief Executive
Officer or the President to call a special meeting of stockholders; and
- requirements for advance notice for raising business or making nominations
at stockholders' meetings.
Our By-Laws establish an advance notice procedure with regard to business to
be brought before an annual or special meeting of stockholders and with regard
to the nomination of candidates for election as directors, other than by or at
the direction of the board of directors. Although our By-Laws do not give the
board of directors any power to approve or disapprove stockholder nominations
for the election of directors or proposals for action, they may have the effect
of precluding a contest for the election of directors or the consideration of
stockholder proposals if the established procedures are not followed, and of
discouraging or deterring a third party from conducting a solicitation of
proxies to elect its own slate of directors or to approve its proposal without
regard to whether consideration of those nominees or proposals might be harmful
or beneficial to us and our stockholders.
CERTAIN PROVISIONS OF INDIANA LAW
The Indiana Business Corporation Law (the "IBCL") applies to us as an
Indiana corporation. Under specified circumstances, the following provisions of
the IBCL may delay, prevent or make more difficult unsolicited acquisition or
changes of control of us. These provisions also may have the effect of
preventing changes in our management. It is possible that these provisions could
make it more difficult to accomplish transactions which stockholders may
otherwise deem to be in their best interests.
CONTROL SHARE ACQUISITIONS. Under Sections 23-1-42-1 to 23-1-42-11 of the
IBCL, an "acquiring person" who makes a "control share acquisition" in an
"issuing public corporation" may not exercise voting rights on any "control
shares" unless these voting rights are conferred by a majority vote of the
disinterested stockholders of the issuing corporation at a special meeting of
those stockholders held upon the request and at the expense of the acquiring
person. If control shares acquired in a control share acquisition are accorded
full voting rights and the acquiring person acquires control shares with a
majority or more of all voting power, all stockholders of the issuing
corporation have dissenters' rights to receive the fair value of their shares.
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<PAGE>
Under the IBCL, "control shares" means shares acquired by a person that,
when added to all other shares of the issuing public corporation owned by that
person or in respect to which that person may exercise or direct the exercise of
voting power, would otherwise entitle that person to exercise voting power of
the issuing public corporation in the election of directors within any of the
following ranges:
- one-fifth or more but less than one-third;
- one-third or more but less than a majority; or
- a majority or more.
"Control share acquisition" means, subject to specified exceptions, the
acquisition, directly or indirectly, by any person of ownership of, or the power
to direct the exercise of voting power with respect to, issued and outstanding
control shares. Shares acquired within 90 days or under a plan to make a control
share acquisition are considered to have been acquired in the same acquisition.
"Issuing public corporation" means a corporation which is organized in Indiana,
has 100 or more stockholders, its principal place of business, its principal
office or substantial assets within Indiana and either:
- more than 10% of its stockholders resident in Indiana;
- more than 10% of its shares owned by Indiana residents; or
- 10,000 stockholders resident in Indiana.
The above provisions do not apply if, before a control share acquisition is
made, the corporation's articles of incorporation or by-laws, including a board
adopted by-law, provide that they do not apply. Our Restated Articles of
Incorporation and By-Laws do not exclude us from the restrictions imposed by the
above provisions.
CERTAIN BUSINESS COMBINATIONS. Sections 23-1-43-1 to 23-1-43-23 of the IBCL
restrict the ability of a "resident domestic corporation" to engage in any
combinations with an "interested stockholder" for five years after the
interested stockholder's date of acquiring shares unless the combination or the
purchase of shares by the interested stockholder on the interested stockholder's
date of acquiring shares is approved by the board of directors of the resident
domestic corporation before that date. If the combination was not previously
approved, the interested stockholder may effect a combination after the
five-year period only if that stockholder receives approval from a majority of
the disinterested shares or the offer meets specified fair price criteria. For
purposes of the above provisions, "resident domestic corporation" means an
Indiana corporation that has 100 or more stockholders. "Interested stockholder"
means any person, other than the resident domestic corporation or its
subsidiaries, who is (1) the beneficial owner, directly or indirectly, of 10% or
more of the voting power of the outstanding voting shares of the resident
domestic corporation or (2) an affiliate or associate of the resident domestic
corporation and at any time within the five-year period immediately before the
date in question was the beneficial owner of 10% or more of the voting power of
the then outstanding shares of the resident domestic corporation. The above
provisions do not apply to corporations that so elect in an amendment to their
articles of incorporation approved by a majority of the disinterested shares.
That amendment, however, would not become effective until 18 months after its
passage and would apply only to stock acquisitions occurring after its effective
date. Our Restated Articles of Incorporation do not exclude us from the
restrictions imposed by the above provisions.
DIRECTORS' DUTIES AND LIABILITY. Under Section 23-1-35-1 of the IBCL,
directors are required to discharge their duties:
- in good faith;
- with the care an ordinarily prudent person in a like position would
exercise under similar circumstances; and
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<PAGE>
- in a manner the directors reasonably believe to be in the best interests
of the corporation.
However, the IBCL also provides that a director is not liable for any action
taken as a director, or any failure to act, unless the director has breached or
failed to perform the duties of the director's office and the action or failure
to act constitutes willful misconduct or recklessness. The exoneration from
liability under the IBCL does not affect the liability of directors for
violations of the federal securities laws.
Section 23-1-35-1 of the IBCL also provides that a board of directors, in
discharging its duties, may consider, in its discretion, both the long-term and
short-term best interests of the corporation, taking into account, and weighing
as the directors deem appropriate, the effects of an action on the corporation's
stockholders, employees, suppliers and customers and the communities in which
offices or other facilities of the corporation are located and any other factors
the directors consider pertinent. If a determination is made with the approval
of a majority of the disinterested directors of the board, that determination is
conclusively presumed to be valid unless it can be demonstrated that the
determination was not made in good faith after reasonable investigation. Once
the board has determined that the proposed action is not in the best interests
of the corporation, it has no duty to remove any barriers to the success of the
action, including a rights plan. Section 23-1-35-1 specifically provides that
specified judicial decisions in Delaware and other jurisdictions, which might be
looked upon for guidance in interpreting Indiana law, including decisions that
propose a higher or different degree of scrutiny in response to a proposed
acquisition of the corporation, are inconsistent with the proper application of
that section.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the common stock will be Norwest Bank
Minnesota, National Association.
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<PAGE>
SHARES ELIGIBLE FOR FUTURE SALE
Prior to this offering, there has been no market for our common stock and we
cannot make any predictions as to the effect, if any, that market sales of
shares or the availability of shares of our common stock for future sale will
have on the market price of the common stock from time to time. Sales of
substantial amounts of our common stock in the public market following this
offering could adversely affect the market price of our common stock and our
ability to raise additional capital.
Giving effect to completion of this offering, as of June 30, 1999, we would
have had 13,370,121 shares of common stock outstanding assuming that the
underwriters do not exercise their over-allotment options and that no
participants exercise their outstanding options under our stock option plans.
The shares of our common stock sold in this offering will be freely tradeable
without restriction or further registration under the Securities Act except for
any of those shares that are beneficially owned at any time by our affiliates,
as defined in Rule 144 under the Securities Act, which sales will be subject to
the timing, volume and manner of sale limitations of Rule 144. The remaining
10,700,121 shares of our common stock outstanding after this offering held by
those who were stockholders prior to this offering will be restricted
securities, as defined in Rule 144. These restricted securities may be sold in
the public market if they are registered under the Securities Act or they are
exempted by an exemption from registration, such as the exemptions provided by
Rule 144. As a result of contractual restrictions, the 180-day lock-up described
below and the provisions of Rule 144, additional shares will be available for
sale in the public market as follows:
- 271,146 restricted securities will be eligible for sale 90 days after the
date of this prospectus;
- 10,284,444 restricted securities will be eligible for sale upon the
expiration of the lock-up agreements described below 180 days after the
date of this prospectus; and
- the remainder of the restricted securities will be eligible for sale from
time to time upon expiration of the one-year holding periods applicable to
those shares.
In general, under Rule 144 as currently in effect, a person, or persons
whose shares are aggregated, who has beneficially owned restricted shares for at
least one year will be entitled to sell, within any three-month period, a number
of shares that does not exceed the greater of 1% of the then outstanding shares
of our common stock, or the average weekly trading volume of our common stock
during the four calendar weeks preceding such sale. Sales under Rule 144 are
also subject to certain provisions regarding the manner of sale, notice
requirements and the availability of current public information about us. If two
years have elapsed since the date of acquisition of restricted shares of our
common stock from us or any of our affiliates and the holder is not deemed to
have been an affiliate of ours for at least three months prior to a proposed
transaction, such person would be entitled to sell such shares under Rule 144
without regard to the limitations described above.
Through June 30, 1999, we have granted options to purchase 2,256,954 shares
of common stock to specified persons pursuant to our stock option plans, and an
additional 3,676,875 shares of common stock are available for grant of future
options thereunder. See "Executive Compensation--Stock Option Plans." We intend
to file a registration statement on Form S-8 as soon as practicable after the
date of this prospectus to register the shares of common stock that are issuable
upon the exercise of stock options either outstanding or available for grant
pursuant to our stock option plans. Following effectiveness, shares covered by
the registration statement on Form S-8 will be eligible for sale in the public
markets, subject to Rule 144 limitations applicable to affiliates as well as to
the limitations on sale and vesting described above.
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<PAGE>
We, our directors and executive officers, one other significant employee and
Dialogic Investment Corporation have agreed for a period of 180 days after the
date of this prospectus not to:
- directly or indirectly offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase or otherwise dispose of or
transfer any shares of our common stock or any securities convertible into
or exchangeable or exercisable for our common stock or file any
registration statement under the Securities Act with respect to any of the
foregoing; or
- enter into any swap or any other agreement or any transaction that
transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of our common stock,
whether any such swap or transaction described in the first or second bullet
point above is to be settled by delivery of common stock or other securities, in
cash or otherwise, without the prior written consent of Merrill Lynch, Pierce,
Fenner & Smith Incorporated on behalf of the underwriters. However, these
restrictions will not apply to:
- this offering;
- the issuance by us of any shares of our common stock upon the exercise of
an outstanding option or the conversion of an outstanding security; or
- the issuance by us of any shares of our common stock or the grant by us of
options to purchase our common stock pursuant to our existing stock option
plans.
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<PAGE>
UNDERWRITING
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Hambrecht & Quist LLC
and U.S. Bancorp Piper Jaffray Inc. are acting as representatives of each of the
underwriters named below. Subject to the terms and conditions set forth in the
Underwriting Agreement among us, our principal stockholder, the selling
stockholder and the underwriters, we have agreed to sell to the underwriters,
and each of the underwriters severally has agreed to purchase from us, the
number of shares of our common stock set forth opposite its name below.
<TABLE>
<CAPTION>
UNDERWRITER NUMBER OF SHARES
-----------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated........................................................................
Hambrecht & Quist LLC..........................................................................
U.S. Bancorp Piper Jaffray Inc.................................................................
-----------------
Total................................................................................ 2,670,000
-----------------
-----------------
</TABLE>
In the Underwriting Agreement, the several underwriters have agreed, subject
to the terms and conditions set forth therein, to purchase all of the shares of
our common stock being sold pursuant to the Underwriting Agreement if any shares
of our common stock are purchased. Under certain circumstances, under the terms
of the Underwriting Agreement, the commitments of the non-defaulting
underwriters may be increased or the Underwriting Agreement may be terminated.
The representatives have advised us that they propose initially to offer the
shares of our common stock to the public at the initial public offering price
set forth on the cover page of this prospectus, and to certain dealers at such
price less a concession not in excess of $ per share of common stock. The
underwriters may allow, and such dealers may reallow, a discount not in excess
of $ per share of common stock on sales to certain other dealers. After the
initial public offering, the public offering price, concession and discount may
be changed.
We have granted the underwriters a 30-day option to purchase up to an
aggregate of 330,500 additional shares of our common stock, and Mr. Gibbs, the
selling stockholder, has granted to the underwriters a 30-day option to purchase
up to an aggregate of 70,000 shares of our common stock owned by him, at the
initial public offering price set forth on the cover of this prospectus, less
the underwriting discount. The underwriters may exercise these options to cover
over-allotments, if any, made on the sale of our common stock offered by this
prospectus. The underwriters must first exercise the option to purchase the
shares offered by the selling stockholder before they can exercise the option to
purchase our shares. To the extent that the underwriters exercise either of
these options, each underwriter will be obligated, subject to certain
conditions, to purchase a number of additional shares of our common stock
proportionate to that underwriter's initial amount reflected in the table above.
The following table shows the per share and total underwriting discounts to
be paid by us and the selling stockholder to the underwriters. This information
is presented assuming either no exercise or full exercise by the underwriters of
their over-allotment options.
<TABLE>
<CAPTION>
WITHOUT WITH
PER SHARE OPTIONS OPTIONS
----------- --------- ---------
<S> <C> <C> <C>
Public Offering Price............................................................. $ $ $
Underwriting Discount............................................................. $ $ $
Proceeds, before expenses, to us.................................................. $ $ $
Proceeds to the selling stockholder............................................... $ $ $
</TABLE>
We will not receive any of the proceeds from the sale of any shares sold by
the selling stockholder. The expenses of this offering are estimated at $650,000
and are all payable by us.
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The shares of common stock are being offered by the several underwriters,
subject to prior sale, when as and if issued to and accepted by them, subject to
approval of certain legal matters by counsel for the underwriters and certain
other conditions. The underwriters reserve the right to withdraw, cancel or
modify such offer and to reject orders in whole or in part.
At our request, the underwriters have reserved up to 7% of the shares of our
common stock offered by this prospectus for sale, at the initial public offering
price, to some of our employees, executive officers, directors and resellers and
to some individuals designated by them. The number of shares of our common stock
available for sale to the general public in this offering will be reduced to the
extent such persons purchase such reserved shares. Any reserved shares which are
not so purchased will be offered by the underwriters to the general public on
the same basis as the other shares offered by this prospectus.
We, our directors and executive officers, one other significant employee and
Dialogic Investment Corporation have agreed for a period of 180 days after the
date of this prospectus not to:
- directly or indirectly offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase or otherwise dispose of or
transfer any shares of our common stock or any securities convertible into
or exchangeable or exercisable for our common stock or file any
registration statement under the Securities Act with respect to any of the
foregoing; or
- enter into any swap or any other agreement or any transaction that
transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of our common stock,
whether any such swap or transaction described in the first or second bullet
point above is to be settled by delivery of common stock or other securities, in
cash or otherwise, without the prior written consent of Merrill Lynch on behalf
of the underwriters. However, these restrictions will not apply to:
- this offering;
- the issuance by us of any shares of our common stock upon the exercise of
an outstanding option or the conversion of an outstanding security; or
- the issuance by us of any shares of our common stock or the grant by us of
options to purchase our common stock pursuant to our existing stock option
plans. See "Shares Eligible for Future Sale."
Prior to this offering, there has been no market for our common stock. The
initial public offering price will be determined through negotiations among us
and the representatives. Among the factors considered in determining the initial
public offering price, in addition to prevailing market conditions, will be the
trading multiples of publicly traded companies that the representatives believe
to be comparable to us, certain of our financial information, the history of,
and the prospects for, us and the industry in which we compete, an assessment of
our management, our past and present operations, the prospects for, and timing
of, our future revenues, the present state of our development, the percentage
interest of our company being sold as compared to the valuation for the entire
company and the above factors in relation to market values and various valuation
measures of other companies engaged in activities similar to ours. We cannot
assure you that an active trading market will develop for our common stock or
that our common stock will trade in the public market subsequent to this
offering at or above the initial public offering price.
We have applied to have our common stock approved for quotation on the
Nasdaq National Market under the symbol "ININ."
The underwriters do not intend to confirm sales of our common stock to any
accounts over which they exercise discretionary authority.
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We, our principal stockholder and the selling stockholder have agreed to
indemnify the underwriters against certain liabilities, including certain
liabilities under the Securities Act, or to contribute to payments the
underwriters may be required to make in respect of those liabilities.
Until the distribution of our common stock is completed, SEC rules may limit
the ability of the underwriters and certain selling group members to bid for and
purchase our common stock. As an exception to these rules, the representatives
are permitted to engage in certain transactions that stabilize the price of our
common stock. Such transactions consist of bids or purchases for the purpose of
pegging, fixing, or maintaining the price of our common stock. If commenced,
such transactions may be discontinued at any time without notice.
If the underwriters create a short position in our common stock in
connection with this offering, that is, if they sell more shares of common stock
than are set forth on the cover pages of this prospectus, the representatives
may reduce that short position by purchasing common stock in the open market.
The representatives may also elect to reduce any short position by exercising
all or part of the over-allotment option described above.
The representatives may also impose a penalty bid on certain underwriters
and selling group members. This means that if the representatives purchase
shares of our common stock in the open market to reduce the underwriters' short
position or to stabilize the price of our common stock, they may reclaim the
amount of the selling concession from the underwriters and selling group members
who sold those shares as part of this offering.
In general, purchases of a security for the purpose of stabilization or to
reduce a short position could cause the price of the security to be higher than
it might be in the absence of such purchases. The imposition of a penalty bid
might also have an effect on the price of our common stock to the extent that it
discourages resales of our common stock.
Neither we nor any of the underwriters makes any representation or
prediction as to the direction or magnitude of any effect that the transactions
described above may have on the price of our common stock. In addition, neither
we nor any of the underwriters makes any representation that the representatives
will engage in such transactions or that such transactions, once commenced, will
not be discontinued without notice.
69
<PAGE>
LEGAL MATTERS
The validity of the common stock offered by this prospectus will be passed
upon by Baker & Daniels, Indianapolis, Indiana. Certain legal matters in
connection with this offering will be passed upon for the underwriters by Mayer,
Brown & Platt, Chicago, Illinois.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements and schedule at December 31, 1998 and 1997, and for each of
the three years in the period ended December 31, 1998, as set forth in their
reports. We have included our financial statements and schedule in this
prospectus and elsewhere in the registration statement in reliance on Ernst &
Young LLP's report, given on their authority as experts in accounting and
auditing.
ADDITIONAL INFORMATION
We have filed with the SEC a Registration Statement on Form S-1 under the
Securities Act with respect to our common stock offered hereby. This prospectus
is a part of that Registration Statement. This prospectus contains all material
information with respect to the matters discussed in it, but it does not contain
all of the information set forth in the Registration Statement and the exhibits
and schedule to the Registration Statement. Certain parts of the Registration
Statement are omitted as allowed by the rules and regulations of the SEC. We
refer to the Registration Statement and to the exhibits and schedule to the
Registration Statement for further information with respect to us and our common
stock being offered hereby.
Copies of the Registration Statement and the exhibits and schedule to the
Registration Statement are on file at the offices of the SEC and copies may be
obtained upon payment of the prescribed fee or may be examined without charge at
the public reference facilities maintained by the SEC at its principal office
located at 450 Fifth Street, N.W., Washington, D.C. 20549, and at the SEC's
regional offices located at 7 World Trade Center, Suite 1300, New York, New York
10048 and 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. The SEC
also maintains a World Wide Web site on the Internet at http://www.sec.gov which
contains reports, proxy and information statements and other information
regarding companies that file electronically with the SEC. Upon approval of the
common stock for quotation on the Nasdaq National Market, those reports, proxy
and information statements and other information also can be inspected at
Nasdaq's office at 1735 K Street, N.W., Washington, D.C. 20006.
70
<PAGE>
INTERACTIVE INTELLIGENCE, INC.
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
Report of Independent Auditors............................................................................. F-2
Consolidated Balance Sheets................................................................................ F-3
Consolidated Statements of Operations...................................................................... F-4
Consolidated Statements of Shareholders' Deficit........................................................... F-5
Consolidated Statements of Cash Flows...................................................................... F-6
Notes to Consolidated Financial Statements................................................................. F-7
</TABLE>
F-1
<PAGE>
REPORT OF INDEPENDENT AUDITORS
The Board of Directors
Interactive Intelligence, Inc.
We have audited the accompanying consolidated balance sheets of Interactive
Intelligence, Inc. as of December 31, 1998 and 1997 and the related consolidated
statements of operations, shareholders' deficit and cash flows for each of the
three years in the period ended December 31, 1998. These financial statements
are the responsibility of the Company's management. Our responsibility is to
express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of Interactive Intelligence,
Inc. at December 31, 1998 and 1997 and the results of its operations and its
cash flows for each of the three years in the period ended December 31, 1998 in
conformity with generally accepted accounting principles.
/s/ ERNST & YOUNG LLP
Indianapolis, IN
February 3, 1999, except as to the first paragraph of Note 5,
as to which the date is April 16, 1999 and Note 12, as to
which the date is July 12, 1999
F-2
<PAGE>
INTERACTIVE INTELLIGENCE, INC.
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE AMOUNTS)
<TABLE>
<CAPTION>
DECEMBER 31,
---------------------
1997 1998
--------- ---------- JUNE 30,
1999
-----------
(UNAUDITED)
<S> <C> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents................................................... $ 390 $ 2,021 $ 87
Accounts receivable, net of allowance for doubtful accounts of $148 in 1997,
$272 in 1998, and $345 in 1999............................................ 1,353 3,269 3,592
Prepaid expenses............................................................ 148 269 322
Other current assets........................................................ 20 75 104
--------- ---------- -----------
Total current assets.......................................................... 1,911 5,634 4,105
Property and equipment, net................................................... 1,197 2,440 3,509
Other assets, net............................................................. 33 165 184
--------- ---------- -----------
Total assets.................................................................. $ 3,141 $ 8,239 $ 7,798
--------- ---------- -----------
--------- ---------- -----------
LIABILITIES AND SHAREHOLDERS' DEFICIT
Current liabilities:
Accounts payable and accrued liabilities.................................... $ 785 $ 1,597 $ 1,819
Accrued compensation and related expenses................................... 157 265 736
Lines of credit............................................................. 1,500 -- 1,055
Deferred revenue............................................................ 903 1,500 3,076
Current portion of capital lease obligations................................ 141 541 586
--------- ---------- -----------
Total current liabilities..................................................... 3,486 3,903 7,272
Accounts payable and deferred compensation - shareholder...................... 487 584 550
Notes payable and accrued interest - shareholder.............................. 5,084 7,969 7,346
Capital lease obligations, net of current portion............................. 301 937 627
Shareholders' deficit:
Preferred stock, no par value; 10,000,000 authorized; no shares issued and
outstanding................................................................. -- -- --
Common stock, $0.01 par value; 100,000,000 authorized; 7,741,500 issued and
outstanding at December 31, 1997, 10,075,891 issued and outstanding at
December 31, 1998, 10,700,121 issued and outstanding at June 30, 1999....... 77 101 107
Additional paid-in-capital.................................................... 955 9,386 10,739
Accumulated deficit........................................................... (7,249) (14,641) (18,843)
--------- ---------- -----------
Total shareholders' deficit................................................... (6,217) (5,154) (7,997)
--------- ---------- -----------
Total liabilities and shareholders' deficit................................... $ 3,141 $ 8,239 $ 7,798
--------- ---------- -----------
--------- ---------- -----------
</TABLE>
See accompanying notes.
F-3
<PAGE>
INTERACTIVE INTELLIGENCE, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
YEAR ENDED
DECEMBER 31,
-------------------------------
1996 1997 1998
--------- --------- --------- SIX MONTHS ENDED
JUNE 30,
------------------------
1998 1999
----------- -----------
(UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C> <C>
Revenues:
Software............................................ $ -- $ 1,265 $ 7,662 $ 2,980 $ 5,482
Services............................................ -- 325 1,349 407 1,826
--------- --------- --------- ----------- -----------
Total revenues........................................ -- 1,590 9,011 3,387 7,308
--------- --------- --------- ----------- -----------
Costs and expenses:
Costs of software................................... -- 38 59 24 60
Costs of services................................... -- 1,258 3,381 1,387 2,360
Sales and marketing................................. 157 2,519 6,623 2,715 4,553
Research and development............................ 987 2,118 4,065 1,837 3,004
General and administrative.......................... 192 742 1,407 590 1,135
--------- --------- --------- ----------- -----------
Total costs and expenses.............................. 1,336 6,675 15,535 6,553 11,112
--------- --------- --------- ----------- -----------
Operating loss........................................ (1,336) (5,085) (6,524) (3,166) (3,804)
Interest expense, net................................. 43 361 868 428 398
--------- --------- --------- ----------- -----------
Loss before income taxes.............................. (1,379) (5,446) (7,392) (3,594) (4,202)
Income taxes.......................................... -- -- -- -- --
--------- --------- --------- ----------- -----------
Net loss.............................................. $ (1,379) $ (5,446) $ (7,392) $ (3,594) $ (4,202)
--------- --------- --------- ----------- -----------
--------- --------- --------- ----------- -----------
Net loss per share:
Basic and diluted..................................... $ (0.33) $ (0.71) $ (0.84) $ (0.44) $ (0.40)
--------- --------- --------- ----------- -----------
--------- --------- --------- ----------- -----------
Shares used to compute net loss per share:
Basic and diluted..................................... 4,216 7,642 8,816 8,203 10,538
</TABLE>
See accompanying notes.
F-4
<PAGE>
INTERACTIVE INTELLIGENCE, INC.
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' DEFICIT
(IN THOUSANDS)
<TABLE>
<CAPTION>
COMMON STOCK ADDITIONAL
---------------------- PAID-IN ACCUMULATED
SHARES AMOUNT CAPITAL DEFICIT TOTAL
--------- ----------- ----------- ------------ ---------
<S> <C> <C> <C> <C> <C>
Balances, January 1, 1996................................. 3,982 $ 40 $ 491 $ (424) $ 107
Issuances of common stock............................... 3,518 35 434 -- 469
Net loss................................................ -- -- -- (1,379) (1,379)
--------- ----- ----------- ------------ ---------
Balances, December 31, 1996............................... 7,500 75 925 (1,803) (803)
Exercise of stock options............................... 242 2 30 -- 32
Net loss................................................ -- -- -- (5,446) (5,446)
--------- ----- ----------- ------------ ---------
Balances, December 31, 1997............................... 7,742 77 955 (7,249) (6,217)
Conversion of shareholder debt to equity................ 1,000 10 2,990 -- 3,000
Issuances of common stock............................... 711 7 5,326 -- 5,333
Repurchases of common stock............................. (3) -- (12) -- (12)
Exercise of stock options............................... 626 7 127 -- 134
Net loss................................................ -- -- -- (7,392) (7,392)
--------- ----- ----------- ------------ ---------
Balances, December 31, 1998............................... 10,076 101 9,386 (14,641) (5,154)
Conversion of shareholder obligations to equity......... 131 1 1,083 -- 1,084
Issuances of common stock............................... 15 -- 120 -- 120
Repurchases of common stock............................. (1) -- (10) -- (10)
Exercise of stock options............................... 479 5 141 -- 146
Amortization of deferred stock based compensation....... -- -- 19 -- 19
Net loss................................................ -- -- -- (4,202) (4,202)
--------- ----- ----------- ------------ ---------
Balances, June 30, 1999 (unaudited)....................... 10,700 $ 107 $ 10,739 $ (18,843) $ (7,997)
--------- ----- ----------- ------------ ---------
--------- ----- ----------- ------------ ---------
</TABLE>
See accompanying notes.
F-5
<PAGE>
INTERACTIVE INTELLIGENCE, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
YEAR ENDED
DECEMBER 31, SIX MONTHS ENDED
------------------------------- JUNE 30,
1996 1997 1998 ------------------------
--------- --------- --------- 1998 1999
----------- -----------
(UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C> <C>
OPERATING ACTIVITIES
Net loss............................................... $ (1,379) $ (5,446) $ (7,392) $ (3,594) $ (4,202)
Adjustments to reconcile net loss to net cash used by
operating activities:
Depreciation......................................... 84 273 774 328 661
Amortization of deferred stock based compensation.... -- -- -- -- 19
Changes in operating assets and liabilities:
Accounts receivable................................ (37) (1,316) (1,916) (1,639) (323)
Prepaid expenses................................... (42) (106) (121) (1) (53)
Other current assets............................... -- (18) (55) (31) (29)
Accounts payable and accrued liabilities........... 59 674 812 318 222
Accrued compensation and related expenses.......... 75 120 108 201 471
Deferred revenue................................... -- 903 597 338 1,576
Accounts payable and deferred compensation -
shareholder...................................... 50 425 97 50 (34)
--------- --------- --------- ----------- -----------
Net cash used by operating activities.................. (1,190) (4,491) (7,096) (4,030) (1,692)
INVESTING ACTIVITIES
Purchases of property and equipment, net............... (330) (657) (697) (91) (1,730)
Change in other assets................................. (8) (23) (132) (24) (19)
--------- --------- --------- ----------- -----------
Net cash used by investing activities.................. (338) (680) (829) (115) (1,749)
FINANCING ACTIVITIES
Borrowings under lines of credit....................... 500 1,000 -- 51 1,055
Repayments of lines of credit.......................... -- -- (1,500) (51) --
Principal payments on capital lease obligations........ -- (47) (284) (104) (265)
Borrowings under notes payable and accrued interest -
shareholder.......................................... 531 4,553 5,885 3,877 461
Proceeds from issuances of common stock................ 469 -- 5,333 -- 120
Repurchases of common stock............................ -- -- (12) -- (10)
Proceeds from stock options exercised.................. -- 32 134 66 146
--------- --------- --------- ----------- -----------
Net cash provided by financing activities.............. 1,500 5,538 9,556 3,839 1,507
--------- --------- --------- ----------- -----------
Net increase (decrease) in cash and cash equivalents... (28) 367 1,631 (306) (1,934)
Cash and cash equivalents, beginning of period......... 51 23 390 390 2,021
--------- --------- --------- ----------- -----------
Cash and cash equivalents, end of period............... $ 23 $ 390 $ 2,021 $ 84 $ 87
--------- --------- --------- ----------- -----------
--------- --------- --------- ----------- -----------
Supplemental disclosure of non-cash investing and
financing activities:
Acquisition of property and equipment with capital
lease.............................................. $ -- $ 488 $ 1,320 $ 822 $ --
</TABLE>
See accompanying notes.
F-6
<PAGE>
INTERACTIVE INTELLIGENCE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(INFORMATION PERTAINING TO THE SIX MONTHS ENDED
JUNE 30, 1998 AND 1999 IS UNAUDITED)
1. THE COMPANY AND SIGNIFICANT ACCOUNTING POLICIES
THE COMPANY
Interactive Intelligence, Inc. ("I3" or "the Company") develops, markets,
and supports enterprise software that allows its customers to automate virtually
every aspect of their business communications. The Company's flagship product,
Enterprise Interaction Center (EIC), is a complete communications solution
providing PBX (private branch exchange), ACD (automated call distributor), IVR
(interactive voice response), unified messaging, and Internet functionality on a
single Windows NT Server. The Company currently derives substantially all of its
revenues from licenses of the Enterprise Interaction Center product and related
services.
Principal operations of the Company commenced during 1997. In 1998, the
Company established a wholly-owned subsidiary in France and a branch office in
Japan. The Company's products are marketed primarily in North America, Western
Europe, South Africa and the Asia/Pacific region.
PRINCIPLES OF CONSOLIDATION
The consolidated financial statements include the accounts of the Company
and its wholly owned subsidiary after elimination of all significant
intercompany accounts and transactions.
REVENUE RECOGNITION
The Company generates software revenues from licensing the rights to use its
software products and also generates service revenues primarily from ongoing
maintenance (post-contract technical support and product upgrades), educational
services, and professional services performed for resellers and end-user
customers.
Revenue from software license agreements is recognized upon shipment of the
software if:
- persuasive evidence of an arrangement exists;
- sufficient vendor-specific objective evidence exists to support allocating
the total fee to all elements of the arrangement;
- the fee is fixed or determinable; and
- collection is probable.
Shipment is further defined in certain contracts as delivery of the product
master or first copy for non-cancelable product licensing arrangements under
which the reseller has certain software distribution rights. For licensing
arrangements placed through a reseller, software revenues are generally
recognized upon placement of a reseller's binding order, as delivery has
occurred through the reseller's possession of a product master and there are no
further delivery obligations on behalf of the Company.
Revenue from ongoing end-user customer maintenance is recognized ratably
over the post-contract support term, which is typically twelve months. Revenue
from educational services and professional services is recognized when the
services are performed.
F-7
<PAGE>
INTERACTIVE INTELLIGENCE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(INFORMATION PERTAINING TO THE SIX MONTHS ENDED
JUNE 30, 1998 AND 1999 IS UNAUDITED)
1. THE COMPANY AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
USE OF ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the amounts reported in the financial statements and
accompanying notes. Despite management's best effort to establish good faith
estimates and assumptions, actual results could differ from these estimates.
CASH AND CASH EQUIVALENTS
The Company considers all highly liquid investments with a maturity from
date of purchase of three months or less to be cash equivalents. Cash and cash
equivalents consist primarily of cash on deposit with banks and high quality
money market instruments.
FINANCIAL INSTRUMENTS
The fair value of financial instruments, including cash and cash
equivalents, accounts receivable, and debt approximate the carrying values.
PROPERTY AND EQUIPMENT
Property and equipment are stated at cost. Leasehold improvements are
amortized using the straight-line method over the lesser of the term of the
related lease or the estimated useful life. Depreciation, which includes
amortization on capital leases, is calculated using the straight-line method
over the estimated useful lives of the assets.
RESEARCH AND DEVELOPMENT
Research and development expenditures are generally charged to operations as
incurred. Statement of Financial Accounting Standards No. 86, ACCOUNTING FOR THE
COSTS OF COMPUTER SOFTWARE TO BE SOLD, LEASED OR OTHERWISE MARKETED, requires
capitalization of certain software development costs subsequent to the
establishment of technological feasibility. Based on the Company's product
development process, technological feasibility is established upon completion of
a working model. Costs incurred by the Company between completion of the working
model and the point at which the product is ready for general release have been
insignificant. Through June 30, 1999, all research and development costs have
been expensed.
STOCK OPTIONS
In accordance with Statement of Financial Accounting Standards No. 123,
ACCOUNTING FOR STOCK-BASED COMPENSATION (SFAS 123), the Company uses the
intrinsic value method to account for stock options, consistent with the
existing rules established by Accounting Principles Board No. 25, ACCOUNTING FOR
STOCK ISSUED TO EMPLOYEES.
F-8
<PAGE>
INTERACTIVE INTELLIGENCE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(INFORMATION PERTAINING TO THE SIX MONTHS ENDED
JUNE 30, 1998 AND 1999 IS UNAUDITED)
1. THE COMPANY AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
LOSS PER SHARE
Basic loss per share is calculated based on the weighted-average number of
outstanding common shares in accordance with Statement of Financial Accounting
Standard No. 128, EARNINGS PER SHARE. Diluted loss per share is calculated based
on the weighted-average number of outstanding common shares plus the effect of
dilutive potential common shares. The Company's calculation of diluted net loss
per share excludes potential common shares as the effect would be antidilutive.
Potential common shares are composed of shares of common stock issuable upon the
exercise of stock options.
UNAUDITED INTERIM FINANCIAL STATEMENTS
The accompanying unaudited financial statements as of June 30, 1999, and for
the six months ended June 30, 1998 and 1999, have been prepared in accordance
with generally accepted accounting principles for interim financial information
and with the instructions to Article 10 of Regulation S-X of the Securities
Exchange Act of 1934. Accordingly, they do not include all of the information
and footnotes required by generally accepted accounting principles for complete
financial statements.
In the opinion of the Company, all adjustments considered necessary to
present fairly the consolidated financial position as of June 30, 1999 and the
consolidated statements of operations, shareholders' deficit and cash flows for
the six month periods ended June 30, 1998 and 1999 have been included.
RECENTLY ISSUED ACCOUNTING STANDARDS
Effective January 1, 1998, the Company adopted Statement of Financial
Accounting Standards No. 130, REPORTING COMPREHENSIVE INCOME (SFAS 130). SFAS
130 establishes new rules for the reporting and display of comprehensive income
and its components. Comprehensive income is the same as net income as there are
no applicable adjustments reported in shareholders' deficit. Accordingly, the
adoption of this statement had no impact on the Company's net income or
shareholders' deficit.
Effective January 1, 1998, the Company adopted the Statement of Financial
Accounting Standards No. 131, DISCLOSURES ABOUT SEGMENTS OF AN ENTERPRISE AND
RELATED INFORMATION (SFAS 131). SFAS 131 requires public business enterprises to
report information about operating segments in annual financial statements and
requires those enterprises to report selected information about operating
segments in interim financial reports. The adoption of SFAS 131 did not have a
significant effect on the disclosure of segment information as the Company
continues to consider its business activities as a single segment.
Other recently issued Statements of Financial Accounting Standards up
through and including the most recently issued SFAS, SFAS 137, are not
applicable to the Company.
F-9
<PAGE>
INTERACTIVE INTELLIGENCE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(INFORMATION PERTAINING TO THE SIX MONTHS ENDED
JUNE 30, 1998 AND 1999 IS UNAUDITED)
2. PROPERTY AND EQUIPMENT
Property and equipment, including capital leases, are summarized as follows
at December 31 (IN THOUSANDS):
<TABLE>
<CAPTION>
1997 1998
--------- ---------
<S> <C> <C>
Computer equipment......................................................... $ 1,123 $ 2,550
Furniture & fixtures....................................................... 149 284
Office equipment........................................................... 43 58
Leasehold improvements..................................................... 14 98
Software................................................................... 155 416
Trade show equipment....................................................... 92 187
--------- ---------
1,576 3,593
Less accumulated depreciation.............................................. 379 1,153
--------- ---------
$ 1,197 $ 2,440
--------- ---------
--------- ---------
</TABLE>
3. BANK LINES OF CREDIT
The Company has a line of credit with a bank in the amount of $1,000,000
which bears interest at the bank's prime rate (7.75% at December 31, 1998). As
of December 31, 1998 the Company had no outstanding balance under the line of
credit. The line of credit is guaranteed by the Company's primary shareholder
and expires August 31, 1999.
The Company has a line of credit with a bank in the amount of $4,000,000
which is limited to 80% of the eligible accounts receivable and bears interest
at the bank's prime rate (7.75% at December 31, 1998). As of December 31, 1998,
the Company had no outstanding balance under the line of credit. The line of
credit is secured by certain accounts receivable and is guaranteed by the
Company's primary shareholder. As of December 31, 1998, the Company has
availability of approximately $2,700,000 under this line of credit. This line of
credit expires September 30, 1999.
The Company had a line of credit with a bank in the amount of $500,000 which
bore interest at the bank's prime rate (7.75% at December 31, 1998). As of
December 31, 1998 the Company had no outstanding balance under the line of
credit. The line of credit was guaranteed by the Company's primary shareholder
and expired April 30, 1999.
In June, 1999 the Company obtained a commitment from the Company's primary
lender to extend the Company a $5,000,000 unsecured line of credit contingent
upon the Company successfully completing its initial public offering, the
negotiation and execution of definitive documents and other customary
conditions. When obtained, the line of credit will most likely be subject to
certain restrictive covenants that, among other things, will limit the Company's
ability to incur additional indebtedness or pay dividends and will require the
Company to maintain prescribed debt to equity and fixed charge coverage ratios
and minimum net worth levels.
The Company paid $43,232, $132,704, and $199,433 of interest in 1996, 1997,
and 1998, respectively.
F-10
<PAGE>
INTERACTIVE INTELLIGENCE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(INFORMATION PERTAINING TO THE SIX MONTHS ENDED
JUNE 30, 1998 AND 1999 IS UNAUDITED)
4. RELATED PARTY TRANSACTIONS
At December 31, 1998 the Company had notes payable of $7,056,000 with its
primary shareholder. The notes payable and related interest, accruing at a rate
of 10% per annum ($227,862 and $913,367 at December 31, 1997, and 1998,
respectively), are due December 31, 2001. There was no interest expense on the
notes payable in 1996. Interest expense on the notes payable was $227,862, and
$685,505 in 1997 and 1998, respectively. The notes payable are subordinated to
the outstanding lines of credit.
On December 2, 1996 and December 10, 1996, the Company issued 1,875,000 and
1,642,500 shares of Common Stock to its primary shareholder for consideration
totaling $469,000. On July 31, 1998, the Company converted $3,000,000 of debt
owed to its primary shareholder into 1,000,000 shares of Common Stock. On
February 12, 1999, the Company converted $1,100,000 of amounts owed to its
primary shareholder into 111,111 shares of Common Stock.
The Company paid to a minority shareholder $2,000 in 1996, $905,000 in 1997
and $871,000 in 1998 for voice processing boards and related technology and
services.
The Company's primary shareholder is a director and 25% shareholder in a
telemarketing company that provides both telemarketing and fulfillment services
to the Company. In 1998, the Company paid approximately $110,000 for these
services to the telemarketing company.
5. SHAREHOLDERS' EQUITY
On April 16, 1999, the Company authorized an increase in the authorized
common stock to 100,000,000 and established a par value of $.01 on the common
stock. At the same time, the Company authorized 10,000,000 shares of no par
value preferred stock. In addition, on April 16, 1999, the Company adopted the
1999 Stock Option Plan and the Directors' Stock Option Plan. In conjunction with
the adoption of these 1999 Stock Option Plans the Company will no longer issue
stock options under the 1995 Stock Option Plans.
COMMON STOCK OPTIONS The Company's Stock Option Plans, adopted in 1995 and
1999, authorize the granting of incentive and nonqualified stock options. The
Board of Directors has approved up to an aggregate of 3,900,000 shares for
issuance under the 1999 Stock Option Plans. The exercise price of the options
must not be less than the fair market value of the common stock at the date of
grant for incentive options. Options granted under the 1995 and 1999 Stock
Option Plans generally vest over five and four years, respectively. Options
generally become exercisable in equal annual installments on the anniversaries
of the date of grant. The term of each option is ten years from the date of
grant. However, in the case of an option granted to an employee who, at the time
the option is granted, owns stock representing more than ten percent of the
voting power of all classes of stock of the Company, the term of the option
shall be five years from the date of grant. The plans may be terminated by the
Board of Directors at anytime. Through June 30, 1999, the Board of Directors had
also issued 97,500 nonqualified stock options outside of the 1995 and 1999 Stock
Option Plans.
No compensation expense was recognized in 1996, 1997 or 1998. The Company
recognized compensation expense of approximately $19,000 in 1999.
F-11
<PAGE>
INTERACTIVE INTELLIGENCE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(INFORMATION PERTAINING TO THE SIX MONTHS ENDED
JUNE 30, 1998 AND 1999 IS UNAUDITED)
5. SHAREHOLDERS' EQUITY (CONTINUED)
Stock option activity is summarized as follows:
<TABLE>
<CAPTION>
SIX MONTHS ENDED
1996 1997 1998 JUNE 30, 1999
---------------------- ----------------------- ------------------------ ----------------------
WEIGHTED WEIGHTED WEIGHTED WEIGHTED
AVERAGE AVERAGE AVERAGE AVERAGE
EXERCISE EXERCISE EXERCISE EXERCISE
OPTIONS PRICE OPTIONS PRICE OPTIONS PRICE OPTIONS PRICE
--------- ----------- ---------- ----------- ----------- ----------- --------- -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Options outstanding, beginning
of period................... 1,092,083 $ 0.13 1,727,633 $ 0.13 2,331,683 $ 0.39 2,348,903 $1.25
Options granted............... 635,550 0.13 862,050 0.84 730,500 3.13 418,500 9.12
Options exercised............. -- -- (241,500) 0.13 (626,280) 0.21 (480,749) 0.30
Options canceled.............. -- -- (16,500) 0.87 (87,000) 1.37 (29,700) 2.51
--------- ---------- ----------- ---------
Options outstanding, end of
period...................... 1,727,633 $ 0.13 2,331,683 $ 0.39 2,348,903 $ 1.25 2,256,954 $2.91
--------- ---------- ----------- ---------
--------- ---------- ----------- ---------
Option price range at end of
period...................... $ 0.13 $0.13-0.87 $ 0.13-8.33 $0.13-10.52
Options available for grant at
period end.................. 2,397,367 1,551,817 908,317 3,676,875
Weighted average fair value of
options granted during the
period...................... $ 0.03 $ 0.29 $ 1.16 $2.85
</TABLE>
The following table summarizes information about the options outstanding at
June 30, 1999:
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING
------------------------ OPTIONS EXERCISABLE
WEIGHTED ------------------------
NUMBER AVERAGE WEIGHTED NUMBER WEIGHTED
OUTSTANDING REMAINING AVERAGE EXERCISABLE AVERAGE
RANGE OF AT JUNE 30, CONTRACTUAL EXERCISE AT JUNE 30, EXERCISE
EXERCISE PRICES 1999 LIFE PRICE 1999 PRICE
- --------------- ----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
$0.13 538,704 6.8 years $ 0.13 165,624 $ 0.13
$0.87 622,950 8.1 years $ 0.87 120,270 $ 0.87
$2.67-3.00 640,050 9.1 years $ 2.83 118,710 $ 3.00
$8.33 171,375 9.5 years $ 8.33 -- --
$9.33-10.52 283,875 9.9 years $ 9.50 -- --
</TABLE>
Pro forma information regarding net income is required by SFAS 123, which
also requires that the information be determined as if the Company has accounted
for its employee stock options granted subsequent to December 31, 1994 under the
fair value method of that Statement. The fair value of these options was
estimated at the date of grant using the minimum value pricing model with the
following weighted-average assumptions for 1996, 1997, and 1998 respectively:
risk-free interest rates of 5.5%, 5.5%, and 5.0%; a dividend yield of 0%; and a
weighted-average expected life of the option of 7.5 years. Because the Company's
employee stock options have characteristics significantly different from those
of traded options, and because changes in the subjective input assumptions can
materially affect the fair value estimate, in management's opinion, the existing
models do not necessarily provide a reliable single measure of the fair value of
its employee stock options.
F-12
<PAGE>
INTERACTIVE INTELLIGENCE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(INFORMATION PERTAINING TO THE SIX MONTHS ENDED
JUNE 30, 1998 AND 1999 IS UNAUDITED)
5. SHAREHOLDERS' EQUITY (CONTINUED)
For purposes of pro forma disclosures, the estimated fair value of the
options is amortized to expense over the options' vesting period. The Company's
pro forma information follows (IN THOUSANDS):
<TABLE>
<CAPTION>
1996 1997 1998
--------- --------- ---------
<S> <C> <C> <C>
Pro forma net loss............................................ $ (1,388) $ (5,485) $ (7,730)
Pro forma loss per share...................................... $ (0.33) $ (0.72) $ (0.88)
</TABLE>
Because SFAS 123 is applicable only to options granted subsequent to
December 31, 1994, and because the Company's options generally vest over a
4-year to 5-year period, the pro forma effect of SFAS 123 will not be fully
reflected until future years.
6. LEASE AGREEMENTS
The Company leases its headquarters facilities under non-cancelable
operating lease agreements which expire on various dates through April of 2003.
In September 1998, the Company entered into a five year lease agreement
commencing in March 1999 for 36,797 square feet of office space for its
corporate headquarters in Indianapolis, Indiana.
The Company had $488,297 and $1,809,104 of primarily computer equipment at
December 31, 1997 and 1998, respectively, under a lease line. The lease expires
in December 2000, is secured by the purchased assets and is also guaranteed by
the Company's primary shareholder.
Minimum future lease payments under non-cancelable capital and operating
leases as of December 31, 1998 are summarized as follows (IN THOUSANDS):
<TABLE>
<CAPTION>
CAPITAL OPERATING
LEASES LEASES
--------- -----------
<S> <C> <C>
1999..................................................................... $ 656 $ 818
2000..................................................................... 624 977
2001..................................................................... 394 930
2002..................................................................... -- 942
2003..................................................................... -- 891
Thereafter............................................................... -- 297
--------- -----------
Total minimum lease payments............................................. 1,674 $ 4,855
-----------
-----------
Less: amount representing interest....................................... (196)
---------
Present value of lease payments.......................................... 1,478
Less: current portion.................................................... (541)
---------
Long-term portion........................................................ $ 937
---------
---------
</TABLE>
The Company also rents office space for sales offices under month-to-month
leases and leases with terms generally less than one year. Rent expense was
$88,055, $198,303, and $441,030 for 1996, 1997, and 1998, respectively.
F-13
<PAGE>
INTERACTIVE INTELLIGENCE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(INFORMATION PERTAINING TO THE SIX MONTHS ENDED
JUNE 30, 1998 AND 1999 IS UNAUDITED)
7. CONCENTRATIONS OF RISK
Six resellers represented approximately 55% and 41% of the accounts
receivable balance at December 31, 1997 and 1998, respectively. At June 30, 1999
six resellers represented approximately 36% of our outstanding accounts
receivable balance (unaudited). One international reseller accounted for
approximately 17% of revenues in 1997 and no reseller accounted for 10% or more
of revenues in 1998. The Company evaluates the credit worthiness of its
customers on a periodic basis. The Company generally does not require
collateral.
The Company has one supplier of voice processing boards that are necessary
for the operation of the Company's software product. If the supplier becomes
unable or unwilling to continue to manufacture and supply these voice processing
boards in the volume, price and technical specifications the Company requires,
then the Company would have to adapt its products to a substitute supplier.
8. 401(K) RETIREMENT SAVINGS PLAN
The Company maintains a 401(k) retirement savings plan to provide retirement
benefits for substantially all of its employees. Participants in the plan may
elect to contribute up to 20% of their annual compensation to the plan, limited
to the maximum amount allowed by the Internal Revenue Code. The Company, at its
discretion, may make annual contributions to the plan. The Company has made no
contributions to the plan through December 31, 1998.
9. INCOME TAXES
Effective November 5, 1998, the Company terminated its S-corporation status
for income tax purposes. From that date forward, the taxable income or loss from
operations is includable in the federal and state income tax returns of the
Company.
FASB Statement No. 109, ACCOUNTING FOR INCOME TAXES, requires recognition of
deferred tax liabilities and assets for the expected future tax consequences of
events that have been included in the financial statements or tax returns.
Accordingly, deferred tax liabilities and assets are determined based on the
difference between the financial statement and tax basis of assets and
liabilities. The Company has a net operating loss carryforward of approximately
$1 million at December 31, 1998 available to offset future taxable income for
federal income tax purposes. The carryforward will expire in 2018. Due to the
uncertainty of the realization of the benefits of its favorable tax attributes
in the future, the Company has established a valuation allowance against its
deferred tax assets as of the S-corporation
F-14
<PAGE>
INTERACTIVE INTELLIGENCE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(INFORMATION PERTAINING TO THE SIX MONTHS ENDED
JUNE 30, 1998 AND 1999 IS UNAUDITED)
9. INCOME TAXES (CONTINUED)
termination date and December 31, 1998. Significant components of the Company's
net deferred taxes at December 31 are as follows (IN THOUSANDS):
<TABLE>
<CAPTION>
1998
---------
<S> <C>
Deferred tax assets:
Accrued shareholder interest payable...................................... $ 356
Net operating loss........................................................ 258
Other..................................................................... 198
---------
Total deferred tax assets................................................... 812
Valuation allowance....................................................... (812)
---------
Net deferred taxes.......................................................... $ --
---------
---------
</TABLE>
The Company did not record any current or deferred federal, state or foreign
income tax provision or benefit for any of the periods presented due to
experiencing operating losses since inception.
10. SEGMENT DISCLOSURES
Revenues derived from non-North American customers accounted for
approximately 17% and 16% of the Company's total revenues in 1997 and 1998,
respectively and 20% in the first six months of 1999. Non-North American
revenues were predominantly derived from:
- Ireland (100%) in 1997;
- Sweden (25%), South Africa (18%), Germany (14%), the United Kingdom (7%)
and the Philippines (6%) in 1998; and
- Scotland (23%), The Netherlands (17%), the United Kingdom (16%), Italy
(10%), South Africa (9%), New Zealand (8%), Germany (7%) and Norway (6%)
in the first six months of 1999.
The Company attributes its revenues to countries based on the country in
which the end-user customer is located. Substantially all of the Company's
long-lived assets are in the United States.
11. CONTINGENCIES
In June 1999, the Company received a letter from a competitor in the call
center market claiming that the Company's products utilize technologies
pioneered and patented by that competitor. The Company's patent counsel has
reviewed all of the patents listed in the letter from the competitor. Based upon
the advice of the Company's patent counsel, the Company believes that its
products do not infringe any of the patents listed. The Company intends to
discuss its conclusion with the competitor, but cannot assure you that the
competitor will concur with the Company's conclusion or that this matter can be
resolved amicably, without infringement claims being made by the competitor or
without a material adverse effect on the Company's business, financial condition
or results of operations.
12. SUBSEQUENT EVENT--STOCK SPLIT
On July 9, 1999, the Board of Directors declared a three-for-two stock split
effective July 12, 1999. All common share and per share amounts and information
concerning stock option plans have been adjusted retroactively to give effect to
this stock split.
F-15
<PAGE>
[INSIDE BACK COVER]
THE ENTERPRISE INTERACTION CENTER IS AVAILABLE IN SEVERAL DIFFERENT LANGUAGE
VERSIONS.
[SCREEN CAPTURES OF JAPANESE LANGUAGE VERSION
AND GERMAN LANGUAGE VERSION]
[PHOTOGRAPHS OF AWARDS, INCLUDING CALL CENTER SOLUTIONS
PRODUCT OF THE YEAR - 1998, COMPUTER TELEPHONY 1998 PRODUCT
OF THE YEAR, CALLCENTER 1998 PRODUCT OF THE YEAR, CTI PRODUCT
OF THE YEAR-1998, AND WINDOWS NT MAGAZINE '99 INNOVATIONS
[LOGO]
INTERACTIVE INTELLIGENCE-Registered Trademark-
<TABLE>
<S> <C> <C>
WORLD HEADQUARTERS EUROPEAN HEADQUARTERS ASIA/PACIFIC HEADQUARTERS
8909 PURDUE ROAD, SUITE 300 580 AVENUE WOLFGANG AMADEUS MOZART FERRARE BUILDING 3F, 1-24-15 EBISU
INDIANAPOLIS, IN 46268 USA AIX-EN-PROVENCE - CEDEX 1, 13100 FRANCE SHIBUYA-KU, TOKYO 1 50-0013, JAPAN
317.872.3000 VOICE & FAX +33 442.910.910 VOICE & FAX +81 3.5423.7141 VOICE
</TABLE>
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Through and including , 1999 (the 25th day after the date of
this prospectus), all dealers effecting transactions in these securities,
whether or not participating in this offering, may be required to deliver a
prospectus. This is in addition to the dealers' obligations to deliver a
prospectus when acting as underwriters and with respect to their unsold
allotments or subscriptions.
2,670,000 SHARES
[LOGO]
INTERACTIVE INTELLIGENCE, INC.
COMMON STOCK
---------------
P R O S P E C T U S
----------------
MERRILL LYNCH & CO.
HAMBRECHT & QUIST
U.S. BANCORP PIPER JAFFRAY
, 1999
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the expenses expected to be incurred by the
Registrant in connection with the sale and distribution of the securities being
registered, other than underwriting discounts and commissions. All the amounts
shown are estimates, except the Securities and Exchange Commission registration
fee, the Nasdaq National Market listing fee and the NASD filing fee.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee............... $ 12,788
Nasdaq National Market listing fee................................ 86,000
NASD filing fee................................................... 5,100
Blue sky fees and expenses........................................ 5,000
Accounting fees and expenses...................................... 125,000
Legal fees and expenses........................................... 100,000
Printing and engraving expenses................................... 225,000
Transfer Agent and Registrar fees and expenses.................... 10,000
Miscellaneous expenses............................................ 81,112
---------
Total........................................................... $ 650,000
---------
---------
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Indiana Business Corporation Law provides that a corporation, unless
limited by its articles of incorporation, is required to indemnify its directors
and officers against reasonable expenses incurred in the successful defense of
any proceeding arising out of their serving as a director or officer of the
corporation.
As permitted by the Indiana Business Corporation Law, the Registrant's
Restated Articles of Incorporation provide for indemnification of directors,
officers, employees and agents of the Registrant against any and all liability
and reasonable expense that may be incurred by them, arising out of any claim or
action, civil, criminal, administrative or investigative, in which they may
become involved by reason of being or having been a director, officer, employee
or agent. To be entitled to indemnification, those persons must have been wholly
successful in the claim or action or the board of directors must have
determined, based upon a written finding of legal counsel or another independent
referee, or a court of competent jurisdiction must have determined, that such
persons acted in good faith in what they reasonably believed to be the best
interest of the Registrant (or at least not opposed to its best interests) and,
in addition, in any criminal action, had reasonable cause to believe their
conduct was lawful (or had no reasonable cause to believe that their conduct was
unlawful). The Restated Articles of Incorporation authorize the Registrant to
advance funds for expenses to an indemnified person, but only upon receipt of an
undertaking that he or she will repay the same if it is ultimately determined
that such party is not entitled to indemnification.
The Registrant also has an Indemnity Agreement with each of its directors
and executive officers. The standard for indemnification under the Indemnity
Agreement is substantially the same as under the Registrant's Restated Articles
of Incorporation. The Indemnity Agreement, however, provides for mandatory
advancement of expenses if the indemnitee provides the Registrant with a written
affirmation of the indemnitee's good faith belief that he or she is entitled to
indemnification and a written undertaking to repay the advance if it is
ultimately determined that the indemnitee is not entitled to indemnification.
The undertaking need not be secured. The Indemnity Agreement also provides for
mandatory advancement of expenses in derivative actions on behalf of the
Registrant against an indemnitee.
S-1
<PAGE>
The rights of indemnification provided by the Restated Articles of
Incorporation and the Indemnity Agreements are not exhaustive and are in
addition to any rights to which a director or officer may otherwise be entitled
by contract or as a matter of law. Irrespective of the provisions of the
Restated Articles of Incorporation and the Indemnity Agreements, the Registrant
may, at any time and from time to time, indemnify directors, officers, employees
and other persons to the full extent permitted by the provisions of applicable
law at the time in effect, whether on account of past or future transactions.
The Registrant, Donald E. Brown, M.D., the Registrant's Chairman of the
Board, and John R. Gibbs, the Registrant's Executive Vice President, have agreed
to indemnify the Underwriters, and the Underwriters have agreed to indemnify the
Registrant, Dr. Brown and Mr. Gibbs, against certain civil liabilities,
including liabilities under the Securities Act. See the Form of Underwriting
Agreement filed as Exhibit 1 hereto.
In addition, the Registrant is obtaining a directors' and officers'
liability and company reimbursement policy that insures against certain
liabilities under the Securities Act, subject to applicable retentions.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
The following information is furnished as to securities of the Registrant
sold within the past three years that were not registered under the Securities
Act. All of the information is adjusted for the three-for-two stock split
effected as a stock dividend on July 12, 1999.
(a) On December 2, 1996, the Registrant issued 1,875,000 shares of common
stock to Donald E. Brown, M.D. for an aggregate purchase price of $250,000.
(b) On December 10, 1996, the Registrant issued 1,642,500 shares of common
stock to Donald E. Brown, M.D. for an aggregate purchase price of $219,000.
(c) From December 10, 1996 through May 1, 1999, the Registrant has issued
promissory notes to Donald E. Brown, M.D. The promissory notes had an aggregate
principal amount of $10,056,000, bear interest at a rate of 10% per annum and
mature on December 31, 2001. Certain amounts of the outstanding principal due
under such promissory notes have been converted into shares of common stock (see
paragraph (d)).
(d) On July 31, 1998, the Registrant issued 1,000,000 shares of common stock
to Donald E. Brown, M.D., in exchange for the cancellation of $3,000,000 in debt
of the Registrant to Dr. Brown.
(e) On July 31, 1998, the Registrant issued 111,111 shares of common stock
to John R. Gibbs for an aggregate purchase price of $333,333.
(f) On November 5, 1998, the Registrant issued 600,000 shares of common
stock to Dialogic Investment Corporation for an aggregate purchase price of
$5,000,000.
(g) On February 12, 1999, the Registrant issued 130,079 shares of common
stock to Donald E. Brown, M.D., in exchange for the cancellation of
$1,083,987.50 in accrued interest and deferred compensation payable by the
Registrant to Dr. Brown.
(h) On February 12, 1999, the Registrant issued 14,452 shares of common
stock to John R. Gibbs for an aggregate purchase price of $120,443.
(i) From August 1995 through April 16, 1999, the Registrant granted options
for an aggregate of 3,418,057 shares of common stock to 171 officers, directors,
employees and consultants under the Registrant's 1995 Incentive Stock Option
Plan and the Registrant's 1995 Nonstatutory Stock Option Incentive Plan. The per
share exercise price for such options range from $0.13 to $9.33. Through June
30, 1999, 1,348,528 of such outstanding options were exercised and 133,200 have
been canceled.
S-2
<PAGE>
(j) On September 22, 1998, the Registrant granted an option to purchase
67,500 shares of common stock to Donald E. Brown, M.D. The exercise price for
such option is $3.00 per share.
(k) From April 16, 1999 through June 30, 1999, the Registrant granted
options for an aggregate of 223,125 shares of common stock to 37 officers,
employees and other individuals under the Registrant's 1999 Stock Option and
Incentive Plan. The per share exercise price for such options range from $9.33
to $10.52.
(l) On May 26, 1999, the Registrant granted an option to purchase 15,000
shares of common stock to each of two new directors of the Registrant. The
exercise price for these options is $9.33 per share.
(m) On July 12, 1999, all of the Registrant's outstanding shares of common
stock were split on a three-for-two basis, effected as a stock dividend.
The transactions described in paragraphs (a) through (h) above are exempt
from the registration requirements of the Securities Act pursuant to Section
4(2) of the Securities Act. The transactions described in paragraphs (i) through
(l) above are exempt from the registration requirements of the Securities Act
pursuant to Section 4(2) of the Securities Act and/or Rule 701 promulgated
thereunder. The transaction described in paragraph (m) above is exempt from the
registration requirements of the Securities Act because it did not involve a
"sale" of a security within the meaning of Section 2(3) of the Securities Act.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) EXHIBITS
The list of exhibits is incorporated herein by reference to the Index to
Exhibits on page E-1.
(b) FINANCIAL STATEMENT SCHEDULES
Schedule II--Valuation and Qualifying Accounts
All other schedules for which provision is made in the applicable
accounting regulation of the Securities and Exchange Commission are not
required under the related instructions or are inapplicable and therefore
have been omitted.
ITEM 17. UNDERTAKINGS
The Registrant hereby undertakes to provide to the underwriters at the
closing specified in the underwriting agreement certificates in such
denominations and registered in such names as required by the underwriters to
permit prompt delivery to each purchaser.
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
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.
S-3
<PAGE>
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of Prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in a
form of Prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
Prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and this offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
S-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment to Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of
Indianapolis, State of Indiana, on the 23rd day of July, 1999.
<TABLE>
<S> <C> <C>
INTERACTIVE INTELLIGENCE, INC.
By: /s/ DONALD E. BROWN, M.D.
-----------------------------------------
Donald E. Brown, M.D.
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE
OFFICER
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to Registration Statement has been signed by the following persons in their
respective capacities and on the respective dates set forth opposite their
names.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
Chairman, President, Chief
/s/ DONALD E. BROWN, M.D. Executive Officer and
- ------------------------------ Director (Principal July 23, 1999
Donald E. Brown, M.D. Executive Officer)
/s/ JOHN R. GIBBS
- ------------------------------ Executive Vice President July 23, 1999
John R. Gibbs and Director
/s/ MICHAEL J. TAVLIN Chief Financial Officer
- ------------------------------ (Principal Financial July 23, 1999
Michael J. Tavlin Officer)
Vice President of Finance
/s/ KEITH A. MIDKIFF and Controller
- ------------------------------ (Principal Accounting July 23, 1999
Keith A. Midkiff Officer)
/s/ ROBERT A. COMPTON*
- ------------------------------ Director July 23, 1999
Robert A. Compton
/s/ JON ANTON, D.SC.*
- ------------------------------ Director July 23, 1999
Jon Anton, D.Sc.
/s/ MICHAEL P. CULLINANE*
- ------------------------------ Director July 23, 1999
Michael P. Cullinane
</TABLE>
<TABLE>
<S> <C> <C> <C>
*By: /s/ JOHN R. GIBBS
-------------------------
John R. Gibbs
ATTORNEY-IN-FACT
</TABLE>
S-5
<PAGE>
SCHEDULE II--VALUATION AND QUALIFYING ACCOUNTS
INTERACTIVE INTELLIGENCE, INC. AND SUBSIDIARY
<TABLE>
<CAPTION>
ADDITIONS
BALANCE AT ------------------------------------- BALANCE AT
BEGINNING CHARGED TO COSTS CHARGED TO OTHER DEDUCTIONS-- END OF
DESCRIPTION OF PERIOD AND EXPENSES ACCOUNTS--DESCRIBE DESCRIBE PERIOD
- ---------------------------------------- ---------- ---------------- ------------------ ------------ ----------
<S> <C> <C> <C> <C> <C>
Year ended December 31, 1996
Reserves and allowances deducted from
asset accounts:
Allowance for doubtful accounts..... $ -- -- -- -- $ --
Year ended December 31, 1997
Reserves and allowances deducted from
asset accounts:
Allowance for doubtful accounts..... $ -- 148,000 -- -- $ 148,000
Year ended December 31, 1998
Reserves and allowances deducted from
asset accounts:
Allowance for doubtful accounts..... $ 148,000 188,000 -- 64,000(1) $ 272,000
</TABLE>
- ------------------------
(1) Uncollectible accounts written off, net of recoveries.
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENT
- ------------ ----------------------------------------------------------------------------------------------------
<C> <S>
1* Form of Underwriting Agreement
3.1 Restated Articles of Incorporation of the Registrant
3.2 By-Laws of the Registrant, as amended to date
5* Opinion of Baker & Daniels
10.1* 1995 Incentive Stock Option Plan, as amended
10.2 1995 Nonstatutory Stock Option Incentive Plan
10.3 1999 Stock Option and Incentive Plan
10.4 Outside Directors Stock Option Plan, as amended
10.5 Subscription Agreement for Shares of Common Stock between the Registrant and Dialogic Investment
Corporation
10.6 Strategic Relationship Agreement between the Registrant and Dialogic Corporation
10.7 Support Services Agreement between the Registrant and Dialogic Corporation
10.8(i) Consulting and Employment Agreement between the Registrant and John R. Gibbs, dated January 2, 1995
(ii)* Amendment A, dated May 14, 1999, to Consulting and Employment Agreement between the Registrant and
John R. Gibbs, dated January 2, 1995
10.9 Employment Agreement between the Registrant and Michael E. Ford, dated June 30, 1997
10.10 Employment Agreement between the Registrant and Keith A. Midkiff, dated February 10, 1997
10.11 Employment Agreement between the Registrant and Douglas T. Shinsato, dated May 1, 1998
10.12(i) Employment Agreement between the Registrant and Jeremiah J. Fleming, dated as of March 1, 1997
(ii) Amendment A, dated May 14, 1999, to Employment Agreement between the Registrant and Jeremiah J.
Fleming, dated as of March 1, 1997
10.13 Letter of Assignment between the Registrant and Michael E. Ford, effective August 1, 1998
10.14 Stock Option Agreement between the Registrant and Donald E. Brown, M.D., dated September 22, 1998
10.15 Variable Rate Commercial Revolving or Draw Note, dated August 27, 1998, made by the Registrant in
favor of People's Bank and Trust Company
10.16 Variable Rate Commercial Revolving or Draw Note, dated October 1, 1998, made by the Registrant in
favor of People's Bank and Trust Company
10.17 Revolving Credit Loan Agreement, dated August 25, 1995, between the Registrant and Society National
Bank (now KeyBank National Association) ("KeyBank"), Revolving Credit Loan Agreement Note made by
the Registrant in favor of Society National Bank, dated August 25, 1995, and Note Modification
Agreements, dated April 29, 1996, May 8, 1996, April 30, 1997 and April 20, 1998, each between the
Registrant and KeyBank
10.18 Consolidated Subordinated Promissory Note made by the Registrant in favor of Donald E. Brown, M.D.,
dated May 1, 1999
10.19 Office Lease, dated September 16, 1998, between the Registrant and College Park Plaza Associates,
Inc.
10.20(i) Employment Agreement between the Registrant and Michael J. Tavlin, dated June 1, 1999
(ii) Amendment A, dated June 1, 1999, to Employment Agreement between the Registrant and Michael J.
Tavlin, dated June 1, 1999
10.21 Stock Option Agreement between the Registrant and Jon Anton, D.Sc., dated May 26, 1999
</TABLE>
E-1
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENT
- ------------ ----------------------------------------------------------------------------------------------------
<C> <S>
10.22 Stock Option Agreement between the Registrant and Michael P. Cullinane, dated May 26, 1999
10.23 Form of Indemnity Agreement between the Registrant and each of its directors and executive officers
21 Subsidiaries of the Registrant
23.1* Consent of Ernst & Young LLP
23.2 Consent of Baker & Daniels (contained in Exhibit 5)
23.3 Consent of Michael J. Tavlin
23.4 Consent of Woodard, Emhardt, Naughton, Moriarty & McNett
24 Power of Attorney (included on signature page)
27 Financial Data Schedule
</TABLE>
- ------------------------
* Filed with this amendment.
E-2
<PAGE>
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
INTERACTIVE INTELLIGENCE, INC.
(an Indiana corporation)
__________ Shares of Common Stock
PURCHASE AGREEMENT
Dated: ______, 1999
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
PURCHASE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
SECTION 1. Representations and Warranties.. . . . . . . . . . . . . . . . .3
(a) Representations and Warranties by the Company. . . . . . . . . .3
(i) Compliance with Registration Requirements. . . . . . .3
(ii) Independent Accountants. . . . . . . . . . . . . . . .4
(iii) Financial Statements . . . . . . . . . . . . . . . . .4
(iv) No Material Adverse Change in Business . . . . . . . .4
(v) Good Standing of the Company . . . . . . . . . . . . .4
(vi) Good Standing of Subsidiaries. . . . . . . . . . . . .5
(vii) Capitalization . . . . . . . . . . . . . . . . . . . .5
(viii) Authorization of Agreement . . . . . . . . . . . . . .5
(ix) Authorization and Description of Securities. . . . . .5
(x) Absence of Defaults and Conflicts. . . . . . . . . . .6
(xi) Absence of Labor Dispute . . . . . . . . . . . . . . .6
(xii) Absence of Proceedings . . . . . . . . . . . . . . . .7
(xiii) Accuracy of Exhibits . . . . . . . . . . . . . . . . .7
(xiv) Possession of Intellectual Property. . . . . . . . . .7
(xv) Absence of Further Requirements. . . . . . . . . . . .7
(xvi) Possession of Licenses and Permits . . . . . . . . . .8
(xvii) Title to Property. . . . . . . . . . . . . . . . . . .8
(xviii) Compliance with Cuba Act . . . . . . . . . . . . . . .8
(xix) Investment Company Act . . . . . . . . . . . . . . . .8
(xx) Environmental Laws . . . . . . . . . . . . . . . . . .8
(xxi) Registration Rights. . . . . . . . . . . . . . . . . .9
(xxii) Taxes. . . . . . . . . . . . . . . . . . . . . . . . .9
(xxiii) Maintenance of Adequate Insurance. . . . . . . . . . .9
(xxiv) Maintenance of Sufficient Internal Controls. . . . . .9
(xxv) Compliance with Laws.. . . . . . . . . . . . . . . . 10
(xxvi) Imports/Exports. . . . . . . . . . . . . . . . . . . 10
(xxvii) Compliance with ERISA. . . . . . . . . . . . . . . . 10
(xxviii) Year 2000 Compliance . . . . . . . . . . . . . . . . 10
(b) Representations and Warranties by the Selling Stockholder
and the Founder . . . . . . . . . . . . . . . . . . . . . . . 11
(i) Accurate Disclosure. . . . . . . . . . . . . . . . . 11
(ii) Authorization of Agreements. . . . . . . . . . . . . 11
(iii) Good and Marketable Title. . . . . . . . . . . . . . 12
(iv) Due Execution of Power of Attorney and
Custody Agreement. . . . . . . . . . . . . . . . . . 12
(v) Absence of Manipulation. . . . . . . . . . . . . . . 13
(vi) Absence of Further Requirements. . . . . . . . . . . 13
(vii) Restriction on Sale of Securities. . . . . . . . . . 13
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(viii) Certificates Suitable for Transfer . . . . . . . . . 13
(ix) No Association with NASD . . . . . . . . . . . . . . 13
(c) Officer's Certificates . . . . . . . . . . . . . . . . . . . . 13
SECTION 2. Sale and Delivery to Underwriters; Closing . . . . . . . . . . 14
(a) Initial Securities . . . . . . . . . . . . . . . . . . . . . . 14
(b) Option Securities. . . . . . . . . . . . . . . . . . . . . . . 14
(c) Payment. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(d) Denominations; Registration. . . . . . . . . . . . . . . . . . 15
SECTION 3. Covenants of the Company . . . . . . . . . . . . . . . . . . . 16
(a) Compliance with Securities Regulations and
Commission Requests . . . . . . . . . . . . . . . . . . . . . 16
(b) Filing of Amendments . . . . . . . . . . . . . . . . . . . . . 16
(c) Delivery of Registration Statements. . . . . . . . . . . . . . 16
(d) Delivery of Prospectuses . . . . . . . . . . . . . . . . . . . 16
(e) Continued Compliance with Securities Laws. . . . . . . . . . . 17
(f) Blue Sky Qualifications. . . . . . . . . . . . . . . . . . . . 17
(g) Rule 158 . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(h) Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . 18
(i) Listing. . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(j) Restriction on Sale of Securities. . . . . . . . . . . . . . . 18
(k) Reporting Requirements . . . . . . . . . . . . . . . . . . . . 18
(l) Compliance with NASD Rules . . . . . . . . . . . . . . . . . . 18
(m) Compliance with Rule 463 . . . . . . . . . . . . . . . . . . . 18
SECTION 4. Payment of Expenses. . . . . . . . . . . . . . . . . . . . . . 19
(a) Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(b) Expenses of the Selling Stockholder. . . . . . . . . . . . . . 19
(c) Termination of Agreement . . . . . . . . . . . . . . . . . . . 19
(d) Allocation of Expenses . . . . . . . . . . . . . . . . . . . . 19
SECTION 5. Conditions of Underwriters' Obligations. . . . . . . . . . . . 19
(a) Effectiveness of Registration Statement. . . . . . . . . . . . 20
(b) Opinion of Counsel for the Company . . . . . . . . . . . . . . 20
(c) Opinions of Counsel for the Selling Stockholder and
the Founder . . . . . . . . . . . . . . . . . . . . . . . . . 20
(d) Opinion of Counsel for the Underwriters. . . . . . . . . . . . 20
(e) Officers' Certificate. . . . . . . . . . . . . . . . . . . . . 21
(f) Certificate of Selling Stockholder and the Founder . . . . . . 21
(g) Accountant's Comfort Letter. . . . . . . . . . . . . . . . . . 21
(h) Bring-down Comfort Letter. . . . . . . . . . . . . . . . . . . 21
(i) Approval of Listing. . . . . . . . . . . . . . . . . . . . . . 21
(j) No Objection . . . . . . . . . . . . . . . . . . . . . . . . . 22
(k) Lock-up Agreements . . . . . . . . . . . . . . . . . . . . . . 22
(l) Conditions to Purchase of Option Securities. . . . . . . . . . 22
(i) Officers' Certificate. . . . . . . . . . . . . . . . 22
(ii) Certificate of Selling Stockholder and the Founder . 22
ii
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(iii) Opinion of Counsel for Company . . . . . . . . . . . 22
(iv) Opinions of Counsel for the Selling Stockholder and
the Founder . . . . . . . . . . . . . . . . . . . . 22
(v) Opinion of Counsel for Underwriters. . . . . . . . . 22
(vi) Bring-down Comfort Letter. . . . . . . . . . . . . . 23
(m) Additional Documents . . . . . . . . . . . . . . . . . . . . . 23
(n) Termination of Agreement . . . . . . . . . . . . . . . . . . . 23
SECTION 6. Indemnification. . . . . . . . . . . . . . . . . . . . . . . . 23
(a) Indemnification of Underwriters. . . . . . . . . . . . . . . . 23
(b) Indemnification of Company, Directors and Officers, Founder
and Selling Stockholder . . . . . . . . . . . . . . . . . . . 24
(c) Actions against Parties; Notification. . . . . . . . . . . . . 24
(d) Settlement without Consent if Failure to Reimburse . . . . . . 25
(e) Indemnification for Reserved Securities. . . . . . . . . . . . 25
(f) Other Agreements with Respect to Indemnification . . . . . . . 26
(g) Recovery of Claims. . . . . . . . . . . . . . . . . . . . . . 26
SECTION 7. Contribution . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 9. Termination of Agreement . . . . . . . . . . . . . . . . . . . 27
(a) Termination; General . . . . . . . . . . . . . . . . . . . . . 28
(b) Liabilities. . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 10. Default by One or More of the Underwriters . . . . . . . . . . 28
SECTION 11. Default by the Selling Stockholder or the Company. . . . . . . 29
SECTION 12. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 13. Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 14. GOVERNING LAW AND TIME . . . . . . . . . . . . . . . . . . . . 30
SECTION 15. Effect of Headings . . . . . . . . . . . . . . . . . . . . . . 30
SCHEDULES
Schedule A - List of Underwriters . . . . . . . . . . . . . . . . . . . .Sch A-1
Schedule B - List of Selling Stockholders . . . . . . . . . . . . . . . .Sch B-1
Schedule C - Pricing Information. . . . . . . . . . . . . . . . . . . . .Sch C-1
Schedule D - List of Persons Subject to Lock-up . . . . . . . . . . . . .Sch D-1
EXHIBITS
Exhibit A-1 - Form of Opinion of Company's Counsel . . . . . . . . . . . . .A-1
Exhibit A-2 - Form of Opinion of Company's Counsel . . . . . . . . . . . . .A-6
Exhibit B - Form of Opinion for the Selling Stockholder . . . . . . . . . . .B-1
Exhibit C - Form of Opinion for the Founder . . . . . . . . . . . . . . . . .C-1
Exhibit D - Form of Lock-up Letter. . . . . . . . . . . . . . . . . . . . . .D-1
</TABLE>
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INTERACTIVE INTELLIGENCE, INC.
(an Indiana corporation)
2,670,000 Shares of Common Stock
(Par Value $.01 Per Share)
PURCHASE AGREEMENT
________, 1999
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Hambrecht & Quist LLC
U.S. Bancorp Piper Jaffray Inc.
as Representatives of the several Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Interactive Intelligence, Inc., an Indiana corporation (the "Company"),
and the person listed in Schedule B hereto (the "Selling Stockholder"), confirm
their respective agreements with Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated ("Merrill Lynch") and each of the other Underwriters
named in Schedule A hereto (collectively, the "Underwriters," which term shall
also include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom Merrill Lynch, Hambrecht & Quist LLC and U.S. Bancorp Piper
Jaffray Inc. are acting as representatives (in such capacity, the
"Representatives"), with respect to (i) the sale by the Company and the purchase
by the Underwriters, acting severally and not jointly, of the respective numbers
of shares of Common Stock, par value $.01 per share, of the Company ("Common
Stock") set forth in Schedules A and B hereto and (ii) the grant by the Company
and the Selling Stockholder to the Underwriters, acting severally and not
jointly, of the options described in Section 2(b) hereof to purchase all or any
part of 400,500 additional shares of Common Stock to cover over-allotments, if
any. The aforesaid 2,670,000 shares of Common Stock (the "Initial Securities")
to be purchased
<PAGE>
by the Underwriters and all or any part of the 400,500 shares of Common Stock
subject to the options described in Section 2(b) hereof (the "Option
Securities") are hereinafter called, collectively, the "Securities."
The Company and the Selling Stockholder understand that the Underwriters
propose to make a public offering of the Securities as soon as the
Representatives deem advisable after this Agreement has been executed and
delivered.
The Company, the Selling Stockholder and the Underwriters agree that up
to 186,900 shares of the Securities to be purchased by the Underwriters (the
"Reserved Securities") shall be reserved for sale by the Underwriters to certain
eligible employees and persons having business relationships with the Company,
as part of the distribution of the Securities by the Underwriters, subject to
the terms of this Agreement, the applicable rules, regulations and
interpretations of the National Association of Securities Dealers, Inc. (the
"NASD") and all other applicable laws, rules and regulations. To the extent
that such Reserved Securities are not orally confirmed for purchase by such
eligible employees and persons having business relationships with the Company by
the end of the first business day after the date of this Agreement, such
Reserved Securities may be offered to the public as part of the public offering
contemplated hereby.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 333-79509) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations or (ii) if the Company has elected to rely upon
Rule 434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet
(a "Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b).
The information included in such prospectus or in any such Term Sheet, as the
case may be, that was omitted from such registration statement at the time it
became effective but that is deemed to be part of such registration statement at
the time it became effective (a) pursuant to paragraph (b) of Rule 430A is
referred to as "Rule 430A Information" or (b) pursuant to paragraph (d) of Rule
434 is referred to as "Rule 434 Information." Each prospectus used before such
registration statement became effective, and any prospectus that omitted, as
applicable, the Rule 430A Information or the Rule 434 Information, that was used
after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement, including the exhibits thereto and schedules thereto at the time it
became effective and including the Rule 430A Information and the Rule 434
Information, as applicable, is herein called the "Registration Statement." Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations
is herein referred to as the "Rule 462(b) Registration Statement," and after
such filing the term "Registration Statement" shall include the Rule 462(b)
Registration Statement. The final prospectus in the form first furnished to the
Underwriters for use in connection with the offering of the Securities is herein
called the "Prospectus." If Rule 434 is relied on, the term "Prospectus" shall
refer to the preliminary prospectus dated _____, 1999, together with the
2
<PAGE>
applicable Term Sheet, and all references in this Agreement to the date of
the Prospectus shall mean the date of the Term Sheet. For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any Term Sheet or any amendment or supplement
to any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("EDGAR").
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company
represents and warrants to each Underwriter as of the date hereof, as of the
Closing Time referred to in Section 2(c) hereof, and as of each Date of Delivery
(if any) referred to in Section 2(b) hereof, and agrees with each Underwriter,
as follows:
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time (and, if any Option Securities
are purchased, at the Date of Delivery), the Registration Statement, the
Rule 462(b) Registration Statement and any amendments and supplements
thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and did not and
will not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading. Neither the Prospectus nor any
amendments or supplements thereto, at the time the Prospectus or any such
amendment or supplement was issued and at the Closing Time (and, if any
Option Securities are purchased, at the Date of Delivery), included or
will include an untrue statement of a material fact or omitted or will
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. If Rule 434 is used, the Company will comply with the
requirements of Rule 434 and the Prospectus shall not be "materially
different," as such term is used in Rule 434, from the prospectus
included in the Registration Statement at the time it became effective.
The representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through the
Representatives expressly for use in the Registration Statement or
Prospectus.
Each preliminary prospectus and the prospectus filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule
3
<PAGE>
424 under the 1933 Act, complied when so filed in all material respects
with the 1933 Act Regulations and each preliminary prospectus and the
Prospectus delivered to the Underwriters for use in connection with this
offering was identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
(ii) INDEPENDENT ACCOUNTANTS. The accountants who certified the
financial statements and supporting schedules included in the
Registration Statement are independent public accountants as required by
the 1933 Act and the 1933 Act Regulations.
(iii) FINANCIAL STATEMENTS. The financial statements included in
the Registration Statement and the Prospectus, together with the related
schedules and notes, present fairly the financial position of the Company
and its consolidated subsidiaries at the dates indicated and the
statement of operations, stockholders' equity and cash flows of the
Company and its consolidated subsidiaries for the periods specified; said
financial statements have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedules included in
the Registration Statement present fairly in accordance with GAAP the
information required to be stated therein. The selected financial data
and the summary financial information included in the Prospectus present
fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in the
Registration Statement.
(iv) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business (a "Material Adverse Effect"), (B) there
have been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business, which
are material with respect to the Company and its subsidiaries considered
as one enterprise, and (C) there has been no dividend or distribution of
any kind declared, paid or made by the Company on any class of its
capital stock.
(v) GOOD STANDING OF THE COMPANY. The Company has been duly
organized and is validly existing as a corporation under the laws of the
State of Indiana and has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason of the ownership
or leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect.
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<PAGE>
(vi) GOOD STANDING OF SUBSIDIARIES. Each "significant subsidiary"
of the Company (as such term is defined in Rule 1-02 of Regulation S-X)
(each a "Subsidiary" and, collectively, the "Subsidiaries") has been duly
organized and is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation, has corporate power
and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would
not result in a Material Adverse Effect; except as otherwise disclosed in
the Registration Statement, all of the issued and outstanding capital
stock of each such Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and is owned by the Company,
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; none of
the outstanding shares of capital stock of any Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of
such Subsidiary. The only subsidiaries of the Company are the
subsidiaries listed on Exhibit 21 to the Registration Statement, none of
which are significant subsidiaries as defined above.
(vii) CAPITALIZATION. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectus in the
column entitled "Actual" under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to this Agreement, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectus or pursuant to the exercise of convertible securities or
options referred to in the Prospectus). The shares of issued and
outstanding capital stock, including the Securities to be purchased by
the Underwriters from the Selling Stockholder, have been duly authorized
and validly issued and are fully paid and non-assessable; none of the
outstanding shares of capital stock, including the Securities to be
purchased by the Underwriters from the Selling Stockholder, was issued in
violation of the preemptive or other similar rights of any securityholder
of the Company.
(viii) AUTHORIZATION OF AGREEMENT. This Agreement has been duly
authorized, executed and delivered by the Company.
(ix) AUTHORIZATION AND DESCRIPTION OF SECURITIES. The Securities
to be purchased by the Underwriters from the Company have been duly
authorized for issuance and sale to the Underwriters pursuant to this
Agreement and, when issued and delivered by the Company pursuant to this
Agreement against payment of the consideration set forth herein, will be
validly issued and fully paid and non-assessable; the Common Stock
conforms to all statements relating thereto contained in the Prospectus
and such description conforms to the rights set forth in the instruments
defining the same; no holder of the Securities will be subject to
personal liability by reason of being such a holder; and the issuance of
the Securities is not subject to the preemptive or other similar rights
of any securityholder of the Company.
5
<PAGE>
(x) ABSENCE OF DEFAULTS AND CONFLICTS. Neither the Company nor
any of its subsidiaries is in violation of its charter or by-laws or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or other agreement
or instrument to which the Company or any of its subsidiaries is a party
or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any subsidiary is subject
(collectively, "Agreements and Instruments") except for such defaults
that would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated in this Agreement and in the Registration
Statement (including the issuance and sale of the Securities and the use
of the proceeds from the sale of the Securities as described in the
Prospectus under the caption "Use of Proceeds") and compliance by the
Company with its obligations under this Agreement have been duly
authorized by all necessary corporate action and do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event
(as defined below) under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or
any subsidiary pursuant to, the Agreements and Instruments (except for
such conflicts, breaches or defaults or liens, charges or encumbrances
that would not result in a Material Adverse Effect), nor will such action
result in any violation of the provisions of the charter or by-laws of
the Company or any subsidiary or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
the Company or any subsidiary or any of their assets, properties or
operations. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other evidence
of indebtedness (or any person acting on such holder's behalf) the right
to require the repurchase, redemption or repayment of all or a portion of
such indebtedness by the Company or any subsidiary.
(xi) ABSENCE OF LABOR DISPUTE. No labor dispute with the
employees of the Company or any subsidiary exists or, to the knowledge of
the Company, is imminent, and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its or any
subsidiary's principal suppliers, manufacturers, customers or
contractors, which, in either case, may reasonably be expected to result
in a Material Adverse Effect.
(xii) ABSENCE OF PROCEEDINGS. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened, against or affecting the Company or
any subsidiary, which is required to be disclosed in the Registration
Statement (other than as disclosed therein), or which might reasonably be
expected to result in a Material Adverse Effect, or which might
reasonably be expected to materially and adversely affect the properties
or assets thereof or the consummation of the transactions contemplated in
this Agreement or the performance by the Company of its obligations
hereunder; the aggregate of all pending legal or governmental proceedings
to which the Company or any subsidiary is a party or of which any of
their respective property or assets
6
<PAGE>
is the subject which are not described in the Registration Statement,
including ordinary routine litigation incidental to the business, could
not reasonably be expected to result in a Material Adverse Effect.
(xiii) ACCURACY OF EXHIBITS. There are no contracts or documents
which are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits thereto which have not been so
described and filed as required.
(xiv) POSSESSION OF INTELLECTUAL PROPERTY. Except as described in
the Registration Statement or the Prospectus, the Company together with
its subsidiaries owns and possesses all right, title and interest in and
to, or has duly licensed from third parties a valid, enforceable right to
use, all patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names (collectively, "Patent and
Proprietary Rights") currently or proposed to be employed by it in
connection with its business. Except as described in the Registration
Statement or the Prospectus, neither the Company nor any of its
subsidiaries has received any notice of or is otherwise aware of any
infringement or misappropriation of or conflict with asserted rights of
others with respect to any Patent or Proprietary Rights, or of any facts
which would render any Patent or Proprietary Rights invalid or inadequate
to protect the interest of the Company or its subsidiaries therein, and
which infringement, misappropriation or conflict or invalidity or
inadequacy, individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect;
(xv) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Company of its
obligations under this Agreement, in connection with the offering,
issuance or sale of the Securities hereunder or thereunder or the
consummation of the transactions contemplated by this Agreement, except
such as have been already obtained or as may be required under the 1933
Act or the 1933 Act Regulations or state securities laws.
(xvi) POSSESSION OF LICENSES AND PERMITS. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them; the
Company and its subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure so
to comply would not, singly or in the aggregate, have a Material Adverse
Effect; all of the Governmental Licenses are valid and in full force and
effect, except when the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect
would not have a Material Adverse Effect; and neither the Company nor any
of its subsidiaries has received any notice of proceedings relating to
the revocation or modification of any such
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Governmental Licenses which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would result in a Material
Adverse Effect.
(xvii) TITLE TO PROPERTY. The Company and its subsidiaries have
good and marketable title to all real property owned by the Company and
its subsidiaries and good title to all other properties owned by them, in
each case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind except such
as (a) are described in the Prospectus or (b) do not, singly or in the
aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by
the Company or any of its subsidiaries; and all of the leases and
subleases material to the business of the Company and its subsidiaries,
considered as one enterprise, and under which the Company or any of its
subsidiaries holds properties described in the Prospectus, are in full
force and effect, and neither the Company nor any subsidiary has any
notice of any material claim of any sort that has been asserted by anyone
adverse to the rights of the Company or any subsidiary under any of the
leases or subleases mentioned above, or affecting or questioning the
rights of the Company or such subsidiary to the continued possession of
the leased or subleased premises under any such lease or sublease.
(xviii) COMPLIANCE WITH CUBA ACT. The Company has complied with,
and is and will be in compliance with, the provisions of that certain
Florida act relating to disclosure of doing business with Cuba, codified
as Section 517.075 of the Florida statutes, and the rules and regulations
thereunder (collectively, the "Cuba Act") or is exempt therefrom.
(xix)INVESTMENT COMPANY ACT. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus
will not be, an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment Company
Act of 1940, as amended (the "1940 Act").
(xx) ENVIRONMENTAL LAWS. Except as described in the Registration
Statement and except as would not, singly or in the aggregate, result in
a Material Adverse Effect, (A) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of common
law or any judicial or administrative interpretation thereof, including
any judicial or administrative order, consent, decree or judgment,
relating to pollution or protection of human health, the environment
(including, without limitation, ambient air, surface water, groundwater,
land surface or subsurface strata) or wildlife, including, without
limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products (collectively,
"Hazardous Materials") or to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, "Environmental Laws"), (B) the Company and its
subsidiaries have all permits, authorizations and approvals required
under any applicable Environmental Laws and are each in compliance with
their requirements, (C) there are no pending or threatened
administrative, regulatory or judicial
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actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its subsidiaries and
(D) there are no events or circumstances that might reasonably be
expected to form the basis of an order for clean-up or remediation,
or an action, suit or proceeding by any private party or governmental
body or agency, against or affecting the Company or any of its
subsidiaries relating to Hazardous Materials or any Environmental Laws.
(xxi) REGISTRATION RIGHTS. There are no persons with registration
rights or other similar rights to have any securities registered pursuant
to the Registration Statement or otherwise registered by the Company
under the 1933 Act.
(xxii) TAXES. The Company and each of its subsidiaries have filed
all necessary federal, state, local and foreign income, payroll,
franchise and other tax returns (after giving effect to extensions) and
have paid all taxes shown as due thereon or with respect to any of its
properties, and there is no tax deficiency that has been, or to the
knowledge of the Company is likely to be, asserted against the Company,
any of its subsidiaries or any of their properties or assets that would
result in a Material Adverse Effect.
(xxiii) MAINTENANCE OF ADEQUATE INSURANCE. The Company and each
of its subsidiaries is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as is
reasonably prudent in the business in which it is engaged or proposed to
engage after giving effect to the transactions described in the
Prospectus; and the Company does not have any reason to believe that it
will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar insurers
as may be necessary to continue its business at a cost that would not
result in a Material Adverse Effect.
(xxiv) MAINTENANCE OF SUFFICIENT INTERNAL CONTROLS. The Company
maintains a system of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in accordance
with management's general or specific authorization; (ii) transactions
are recorded as necessary to permit preparation of financial statements
in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted
only in accordance with management's general or specific authorization;
and (iv) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(xxv) COMPLIANCE WITH LAWS. To the best of the Company's
knowledge, neither the Company nor any employee or agent of the Company
has made any payment of funds of the Company or received or retained any
funds in violation of any law, rule or regulation, including, without
limitation, the Foreign Corrupt Practices Act.
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(xxvi) IMPORTS/EXPORTS. To the best of the Company's knowledge,
the Company has paid all material tariff, custom, import, export and
other duties required to be paid by it (if any) in connection with the
exportation of products from the country of manufacture, the importation
of products into the United States, the exportation of products from the
United States and the importation of products into another country and
has provided all appropriate authorities with the requisite information,
all of which, to the best of the Company's knowledge, is true and
correct, necessary for the proper determination of the foregoing.
(xxvii) COMPLIANCE WITH ERISA. The Company and each member of its
Control Group is in compliance in all material respects with all
presently applicable provisions of the U.S. Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), and the regulations and
published interpretations thereunder; no "reportable event" (as defined
in ERISA and the regulations and published interpretations thereunder)
has occurred with respect to any material "pension plan" (as defined in
ERISA and the regulations and published interpretations thereunder)
established or maintained by the Company or any member of its Control
Group; neither the Company nor any member of its Control Group has
incurred nor expects to incur any material liability under (i) Title IV
of ERISA with respect to termination of, or withdrawal from, any "pension
plan" or (ii) Section 412 or 4971 of the U.S. Internal Revenue Code of
1986, as amended (the "Code"); and each material "pension plan"
established or maintained by the Company that is intended to be qualified
under Section 401(a) of the Code is so qualified in all material respects
and has received a favorable determination letter as to its qualification
and nothing has occurred, whether by action or failure to act, which
would cause the loss of such qualification. For purposes of this
subsection, "Control Group' is defined to include any entity which is
part of a group which includes the Company and is treated as a single
employer under Section 414 of the Code.
(xxviii) YEAR 2000 COMPLIANCE. The Company has reviewed its
operations and that of its subsidiaries and any third parties with which
the Company or any of its subsidiaries has a material relationship to
evaluate the extent to which the business or operations of the Company or
any of its subsidiaries will be affected by the Year 2000 Problem. As a
result of such review, the Company has no reason to believe, and does not
believe, that the Year 2000 Problem will have a Material Adverse Effect
or result in any material loss or interference with the Company's
business or operations. The "Year 2000 Problem" as used herein means any
significant risk that computer hardware or software used in the receipt,
transmission, processing, manipulation, storage, retrieval,
retransmission or other utilization of data or in the operation of
mechanical or electrical systems of any kind will not, in the case of
dates or time periods occurring after December 31, 1999, function at
least as effectively as in the case of dates or time periods occurring
prior to January 1, 2000.
(b) REPRESENTATIONS AND WARRANTIES BY THE SELLING STOCKHOLDER AND THE
FOUNDER. Each of the Selling Stockholder and Donald E. Brown, M.D. (the
"Founder") severally represents and warrants to each Underwriter as of the date
hereof and as of the Closing Time, and agrees with each Underwriter, as follows:
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(i) ACCURATE DISCLOSURE. To the best knowledge of such Selling
Stockholder and the Founder, the representations and warranties of the
Company contained in Section 1(a) hereof are true and correct; the
Selling Stockholder and the Founder has reviewed and is familiar with the
Registration Statement and the Prospectus and neither the Prospectus nor
any amendments or supplements thereto includes any untrue statement of a
material fact or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; the Selling Stockholder is not
prompted to sell the Securities to be sold by the Selling Stockholder
under this Agreement by any information concerning the Company or any
subsidiary of the Company which is not set forth in the Prospectus.
(ii) AUTHORIZATION OF AGREEMENTS. The Founder has full right,
power and authority to enter into this Agreement. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated herein and compliance by the Founder with his obligations
hereunder have been duly authorized by the Founder and do not and will
not, whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any tax, lien, charge or
encumbrance upon any property or assets of the Founder pursuant to any
contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, license, lease or other agreement or instrument to which the
Founder is a party or by which the Founder may be bound, or to which any
of the property or assets of the Founder is subject, nor will such action
result in any violation of the provisions of any applicable treaty, law,
statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Founder or any of his properties. The
Selling Stockholder has the full right, power and authority to enter into
this Agreement and a Power of Attorney and Custody Agreement (the "Power
of Attorney and Custody Agreement") and to sell, transfer and deliver the
Securities to be sold by the Selling Stockholder herein. The execution
and delivery of this Agreement and the Power of Attorney and Custody
Agreement and the sale and delivery of the Securities to be sold by the
Selling Stockholder and the consummation of the transactions contemplated
herein and compliance by the Selling Stockholder with his obligations
hereunder have been duly authorized by the Selling Stockholder and do not
and will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default under,
or result in the creation or imposition of any tax, lien, charge or
encumbrance upon the Securities to be sold by the Selling Stockholder or
any property or assets of the Selling Stockholder pursuant to any
contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, license, lease or other agreement or instrument to which such
Selling Stockholder is a party or by which the Selling Stockholder may be
bound, or to which any of the property or assets of the Selling
Stockholder is subject, nor will such action result in any violation of
the provisions of any applicable treaty, law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
the Selling Stockholder or any of his properties.
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(iii) GOOD AND MARKETABLE TITLE. If any Option Securities are
purchased, on the Date of Delivery, the Selling Stockholder will have
good and marketable title to the Securities to be sold by him under this
Agreement, free and clear of any security interest, mortgage, pledge,
lien, charge, claim, equity or encumbrance of any kind, other than
pursuant to this Agreement; and upon delivery of such Securities and
payment of the purchase price therefor as contemplated herein, assuming
each such Underwriter has no notice of any adverse claim, each of the
Underwriters will receive good and marketable title to the Securities
purchased by it from the Selling Stockholder, free and clear of any
security interest, mortgage, pledge, lien, charge, claim, equity or
encumbrance of any kind.
(iv) DUE EXECUTION OF POWER OF ATTORNEY AND CUSTODY AGREEMENT.
The Selling Stockholder has duly executed and delivered, in the form
heretofore furnished to the Representatives, the Power of Attorney and
Custody Agreement with ____, or any of them, as attorneys-in-fact (the
"Attorneys-in-Fact") and ____, as custodian (the "Custodian"); the
Custodian is authorized to deliver the Securities to be sold by the
Selling Stockholder hereunder and to accept payment therefor; and each
Attorney-in-Fact is authorized to execute and deliver this Agreement and
the certificate referred to in Section 5(f) or that may be required
pursuant to Section 5(l) on behalf of the Selling Stockholder, to sell,
assign and transfer to the Underwriters the Securities to be sold by the
Selling Stockholder under this Agreement, to determine the purchase price
to be paid by the Underwriters to the Selling Stockholder, as provided in
Section 2(b) hereof, to authorize the delivery of the Securities to be
sold by the Selling Stockholder hereunder, to accept payment therefor,
and otherwise to act on behalf of the Selling Stockholder in connection
with this Agreement.
(v) ABSENCE OF MANIPULATION. The Selling Stockholder and the
Founder has not taken, and will not take, directly or indirectly, any
action which is designed to or which has constituted or which might
reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(vi) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or consent,
approval, authorization, order, registration, qualification or decree of,
any court or governmental authority or agency, domestic or foreign, is
necessary or required for the performance by the Selling Stockholder of
his obligations hereunder or in the Power of Attorney and Custody
Agreement, or in connection with the sale and delivery of the Securities
hereunder or the consummation of the transactions contemplated by this
Agreement, except such as may have previously been made or obtained or as
may be required under the 1933 Act or the 1933 Act Regulations or state
securities laws.
(vii) RESTRICTION ON SALE OF SECURITIES. During a period of 180
days from the date of the Prospectus, the Selling Stockholder and the
Founder will not, without the prior written consent of Merrill Lynch, (i)
offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase or otherwise transfer or dispose of,
directly or indirectly, any share of Common
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Stock or any securities convertible into or exercisable or exchangeable
for Common Stock or file any registration statement under the 1933 Act
with respect to any of the foregoing or (ii) enter into any swap or any
other agreement or any transaction that transfers, in whole or in part,
directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction described in
clause (i) or (ii) above is to be settled by delivery of Common Stock
or such other securities, in cash or otherwise. The foregoing sentence
shall not apply to the Securities to be sold hereunder.
(viii) CERTIFICATES SUITABLE FOR TRANSFER. Certificates for all
of the Securities to be sold by the Selling Stockholder pursuant to this
Agreement, in suitable form for transfer by delivery or accompanied by
duly executed instruments of transfer or assignment in blank with
signatures guaranteed, have been placed in custody with the Custodian
with irrevocable conditional instructions to deliver such Securities to
the Underwriters pursuant to this Agreement.
(ix) NO ASSOCIATION WITH NASD. Neither the Selling Stockholder
nor any of his affiliates directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with, or has any other association with (within the meaning of Article I,
Section 1(m) of the By-laws of the NASD), any member firm of the NASD.
(c) OFFICER'S CERTIFICATES. Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the Representatives or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters covered thereby; and any
certificate signed by or on behalf of the Selling Stockholder or the Founder as
such and delivered to the Representatives or to counsel for the Underwriters
pursuant to the terms of this Agreement shall be deemed a representation and
warranty by the Selling Stockholder or the Founder to the Underwriters as to the
matters covered thereby.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) INITIAL SECURITIES. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter, severally and not jointly, agrees to purchase
from the Company, at the price per share set forth in Schedule C, that portion
of the number of Initial Securities set forth in Schedule B opposite the name of
the Company, which number of Initial Securities set forth on Schedule A opposite
the name of such Underwriter, plus any additional number of Initial Securities
which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof, bears to the total number of Initial
Securities, subject, in each case, to such adjustments among the Underwriters as
the Representatives in their sole discretion shall make to eliminate any sales
or purchases of fractional securities.
(b) OPTION SECURITIES. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, (i) the Company hereby grants an option to the Underwriters,
severally and not jointly, to purchase up to an additional 330,500
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shares of Common Stock at the price per share set forth in Schedule C, and
(ii) the Selling Stockholder hereby grants an option to the Underwriters,
severally and not jointly, to purchase up to 70,000 shares of Common Stock,
as set forth in Schedule B, at the price per share set forth in Schedule C,
in each case, less an amount per share equal to any dividends or
distributions declared by the Company and payable on the Initial Securities
but not payable on the Option Securities. The options hereby granted will
expire 30 days after the date hereof and may be exercised in whole or in part
from time to time only for the purpose of covering over-allotments which may
be made in connection with the offering and distribution of the Initial
Securities upon notice by the Representatives to the Company and/or the
Selling Stockholder, as the case may be, setting forth the number of Option
Securities as to which the several Underwriters are then exercising the
option and the time and date of payment and delivery for such Option
Securities. Notwithstanding the foregoing, the Underwriters must first
exercise in full the option described in clause (ii) above before they may
exercise the option, in whole or in part, described in clause (i) above. Any
such time and date of delivery (a "Date of Delivery") shall be determined by
the Representatives, but shall not be later than seven full business days
after the exercise of said option, nor in any event prior to the Closing
Time, as hereinafter defined. If the option is exercised as to all or any
portion of the Option Securities, each of the Underwriters, acting severally
and not jointly, will purchase that proportion of the total number of Option
Securities then being purchased which the number of Initial Securities set
forth in Schedule A opposite the name of such Underwriter bears to the total
number of Initial Securities, subject in each case to such adjustments as the
Representatives in their discretion shall make to eliminate any sales or
purchases of fractional shares.
(c) PAYMENT. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Mayer,
Brown & Platt, 190 South LaSalle Street, Chicago, Illinois, or at such other
place as shall be agreed upon by the Representatives, the Company and the
Selling Stockholder, at 9:00 A.M. (Eastern time) on the third (fourth, if the
pricing occurs after 4:30 P.M. (Eastern time) on any given day) business day
after the date hereof (unless postponed in accordance with the provisions of
Section 10), or such other time not later than ten business days after such date
as shall be agreed upon by the Representatives and the Company and, if any
Option Securities are to be purchased from the Selling Stockholder on such date,
the Selling Stockholder (such time and date of payment and delivery being herein
called "Closing Time").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representatives,
the Company and the Selling Stockholder, on each Date of Delivery as specified
in the notice from the Representatives to the Company and the Selling
Stockholder.
Payment shall be made to the Company and/or the Selling Stockholder, as
the case may be, by wire transfer of immediately available funds to a bank
account designated by the Company and/or the Custodian pursuant to the Selling
Stockholder's Power of Attorney and Custody Agreement, as the case may be,
against delivery to the Representatives for the respective accounts of the
Underwriters of certificates for the Securities to be purchased by them. It is
understood that each Underwriter has authorized the Representatives, for its
account, to accept delivery of, receipt for,
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and make payment of the purchase price for, the Initial Securities and the
Option Securities, if any, which it has agreed to purchase. Merrill Lynch,
individually and not as representative of the Underwriters, may (but shall
not be obligated to) make payment of the purchase price for the Initial
Securities or the Option Securities, if any, to be purchased by any
Underwriter whose funds have not been received by the Closing Time or the
relevant Date of Delivery, as the case may be, but such payment shall not
relieve such Underwriter from its obligations hereunder.
(d) DENOMINATIONS; REGISTRATION. Certificates for the Initial Securities
and the Option Securities, if any, shall be in such denominations and registered
in such names as the Representatives may request in writing at least one full
business day before the Closing Time or the relevant Date of Delivery, as the
case may be. The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by the
Representatives in The City of New York not later than 10:00 A.M. (Eastern time)
on the business day prior to the Closing Time or the relevant Date of Delivery,
as the case may be.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with each
Underwriter as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
or Rule 434, as applicable, and will notify the Representatives immediately, and
confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt
of any comments from the Commission, (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect the
filings necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the Commission and, in the
event that it was not, it will promptly file such prospectus. The Company will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) FILING OF AMENDMENTS. The Company will give the Representatives
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)), any Term Sheet or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Prospectus,
will furnish the Representatives with copies of any such documents a reasonable
amount of time prior to such proposed filing or use, as the case may be, and
will not file or use any such document to which the Representatives or counsel
for the Underwriters shall object.
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(c) DELIVERY OF REGISTRATION STATEMENTS. The Company has furnished or
will deliver to the Representatives and counsel for the Underwriters, without
charge, signed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Representatives, without charge, a
conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the Underwriters. The copies
of the Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(d) DELIVERY OF PROSPECTUSES. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the Securities
Exchange Act of 1934 (the "1934 Act"), such number of copies of the Prospectus
(as amended or supplemented) as such Underwriter may reasonably request. The
Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company will comply
with the 1933 Act and the 1933 Act Regulations so as to permit the completion of
the distribution of the Securities as contemplated in this Agreement and in the
Prospectus. If at any time when a prospectus is required by the 1933 Act to be
delivered in connection with sales of the Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters or for the Company, to amend the Registration
Statement or amend or supplement the Prospectus in order that the Prospectus
will not include any untrue statements of a material fact or omit to state a
material fact necessary in order to make the statements therein not misleading
in the light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel, at any
such time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Company will furnish to the
Underwriters such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) BLUE SKY QUALIFICATIONS. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other jurisdictions
(domestic or foreign) as the Representatives may designate and to maintain such
qualifications in effect for a period of not less than one year from the later
of the effective date of the Registration Statement and any Rule 462(b)
Registration Statement; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not
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so qualified or to subject itself to taxation in respect of doing business in
any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified, the Company will
file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not
less than one year from the effective date of the Registration Statement and
any Rule 462(b) Registration Statement.
(g) RULE 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) USE OF PROCEEDS. The Company will use the net proceeds received by
it from the sale of the Securities in the manner specified in the Prospectus
under "Use of Proceeds."
(i) LISTING. The Company will use its best efforts to effect and
maintain the quotation of the Securities on the Nasdaq National Market and will
file with the Nasdaq National Market all documents and notices required by the
Nasdaq National Market of companies that have securities that are traded in the
over-the-counter market and quotations for which are reported by the Nasdaq
National Market.
(j) RESTRICTION ON SALE OF SECURITIES. During a period of 180 days from
the date of the Prospectus, the Company will not, without the prior written
consent of Merrill Lynch, (i) directly or indirectly, offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase or otherwise
transfer or dispose of any share of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock or file any registration
statement under the 1933 Act with respect to any of the foregoing or (ii) enter
into any swap or any other agreement or any transaction that transfers, in whole
or in part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction described in clause (i) or
(ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to (A)
the Securities to be sold hereunder, (B) any shares of Common Stock issued by
the Company upon the exercise of an option or the conversion of a security
outstanding on the date hereof and referred to in the Prospectus or (C) any
shares of Common Stock issued or options to purchase Common Stock granted
pursuant to existing employee benefit plans of the Company referred to in the
Prospectus.
(k) REPORTING REQUIREMENTS. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the rules and
regulations of the Commission thereunder.
(l) COMPLIANCE WITH NASD RULES. The Company hereby agrees that it will
ensure that the Reserved Securities will be restricted as required by the NASD
or the NASD rules from sale, transfer, assignment, pledge or hypothecation for a
period of three months following the date of this
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Agreement. The Underwriters will notify the Company as to which persons will
need to be so restricted. At the request of the Underwriters, the Company
will direct the transfer agent to place a stop transfer restriction upon such
securities for such period of time. Should the Company release, or seek to
release, from such restrictions any of the Reserved Securities, the Company
agrees to reimburse the Underwriters for any reasonable expenses (including,
without limitation, legal expenses) they incur in connection with such
release.
(m) COMPLIANCE WITH RULE 463. The Company shall comply with Rule 463 of
the 1933 Act Regulations.
SECTION 4. PAYMENT OF EXPENSES.
(a) EXPENSES. The Company will pay or cause to be paid all expenses
incident to the performance of its obligations under this Agreement, including
(i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation, issuance and
delivery of the certificates for the Securities to the Underwriters, including
any stock or other transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Securities to the Underwriters, (iv) the fees
and disbursements of the Company's counsel, accountants and other advisors, (v)
the qualification of the Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation, printing and delivery of the Blue Sky Survey
and any supplement thereto, (vi) the printing and delivery to the Underwriters
of copies of each preliminary prospectus, any Term Sheets and of the Prospectus
and any amendments or supplements thereto, (vii) the fees and expenses of any
transfer agent or registrar for the Securities, (viii) the filing fees incident
to, and the reasonable fees and disbursements of counsel to the Underwriters in
connection with, the review by the NASD of the terms of the sale of the
Securities, (ix) the fees and expenses incurred in connection with inclusion of
the Securities in the Nasdaq National Market and (x) all costs and expenses of
the Underwriters, including the fees and disbursements of counsel for the
Underwriters, in connection with matters related to the Reserved Securities
which are designated by the Company for sale to employees and others having a
business relationship with the Company.
(b) EXPENSES OF THE SELLING STOCKHOLDER. The Selling Stockholder will
pay all expenses incident to the performance of his obligations under, and the
consummation of the transactions contemplated by this Agreement, including (i)
any stamp duties, capital duties and stock transfer taxes, if any, payable upon
the sale of the Securities to the Underwriters, and their transfer between the
Underwriters pursuant to an agreement between such Underwriters, and (ii) the
fees and disbursements of his counsel and accountants.
(c) TERMINATION OF AGREEMENT. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5, Section 9(a)(i)
or Section 11 hereof, the Company shall
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reimburse the Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of counsel for the Underwriters.
(d) ALLOCATION OF EXPENSES. The provisions of this Section shall not
affect any agreement that the Company and the Selling Stockholder may make for
the sharing of such costs and expenses.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company, the Selling Stockholder and the
Founder contained in Section 1 hereof or in certificates of any officer of the
Company or any subsidiary of the Company or on behalf of the Selling Stockholder
or the Founder delivered pursuant to the provisions hereof, to the performance
by the Company of its covenants and other obligations hereunder, and to the
following further conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective and at
Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. A prospectus containing
the Rule 430A Information shall have been filed with the Commission in
accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A) or, if the Company has elected to rely upon Rule 434,
a Term Sheet shall have been filed with the Commission in accordance with Rule
424(b).
(b) OPINIONS OF COUNSEL FOR THE COMPANY. At Closing Time, the
Representatives shall have received the favorable opinions, dated as of Closing
Time, of Baker & Daniels and Woodward, Emhardt, Naughton, Moriarty & McNett,
both counsel for the Company, in form and substance satisfactory to counsel for
the Underwriters, together with signed or reproduced copies of such letters for
each of the other Underwriters to the effect set forth in Exhibits A-1 and A-2
hereto and to such further effect as counsel to the Underwriters may reasonably
request.
(c) OPINIONS OF COUNSEL FOR THE SELLING STOCKHOLDER AND THE FOUNDER. At
Closing Time, the Representatives shall have received the favorable opinions,
dated as of Closing Time, of Baker & Daniels, counsel for the Selling
Stockholder and the Founder, in form and substance satisfactory to counsel for
the Underwriters, together with signed or reproduced copies of such letters for
each of the other Underwriters to the effect set forth in Exhibits B and C
hereto, respectively, and to such further effect as counsel to the Underwriters
may reasonably request.
(d) OPINION OF COUNSEL FOR THE UNDERWRITERS. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Mayer, Brown & Platt, counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters
with respect to the matters set forth in clauses (i) (insofar as it relates to
the valid existence and good standing of the Company), (ii), (v), (vi) (solely
as to preemptive or other similar rights arising by operation of law or under
the charter or by-laws of the Company), (vii) through (x),
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inclusive, (xii) (solely as to the information in the Prospectus under
"Description of Capital Stock--Common Stock") and the penultimate paragraph
of Exhibit A hereto. In giving such opinion such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the law of the State
of New York and the federal law of the United States, upon the opinions of
counsel satisfactory to the Representatives. Such counsel may also state
that, insofar as such opinion involves factual matters, they have relied, to
the extent they deem proper, upon certificates of officers of the Company and
its subsidiaries and certificates of public officials.
(e) OFFICERS' CERTIFICATE. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Representatives shall have
received a certificate of the President or a Vice President of the Company and
of the chief financial or chief accounting officer of the Company, dated as of
Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1(a) hereof are true
and correct with the same force and effect as though expressly made at and as of
Closing Time, (iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to Closing
Time, and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or are contemplated by the Commission.
(f) CERTIFICATE OF SELLING STOCKHOLDER AND THE FOUNDER. At Closing Time,
the Representatives shall have received a certificate of an Attorney-in-Fact on
behalf of the Selling Stockholder and the Founder, dated as of Closing Time, to
the effect that (i) the representations and warranties of the Selling
Stockholder and the Founder contained in Section 1(b) hereof are true and
correct in all respects with the same force and effect as though expressly made
at and as of Closing Time and (ii) the Selling Stockholder and the Founder has
complied in all material respects with all agreements and all conditions on his
part to be performed under this Agreement at or prior to Closing Time.
(g) ACCOUNTANT'S COMFORT LETTER. At the time of the execution of this
Agreement, the Representatives shall have received from PricewaterhouseCoopers
LLP a letter dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter for
each of the other Underwriters containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(h) BRING-DOWN COMFORT LETTER. At Closing Time, the Representatives
shall have received from PricewaterhouseCoopers LLP a letter, dated as of
Closing Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (g) of this Section, except that the specified
date referred to shall be a date not more than three business days prior to
Closing Time.
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(i) APPROVAL OF LISTING. At Closing Time, the Securities shall have been
approved for inclusion in the Nasdaq National Market, subject only to official
notice of issuance.
(j) NO OBJECTION. The NASD has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
(k) LOCK-UP AGREEMENTS. At the date of this Agreement, the
Representatives shall have received an agreement substantially in the form of
Exhibit C hereto signed by the persons listed on Schedule D hereto.
(l) CONDITIONS TO PURCHASE OF OPTION SECURITIES. In the event that the
Underwriters exercise either or both of their options provided in Section 2(b)
hereof to purchase all or any portion of the Option Securities, the
representations and warranties of the Company, the Selling Stockholder and the
Founder contained herein and the statements in any certificates furnished by the
Company, any subsidiary of the Company, the Selling Stockholder and the Founder
hereunder shall be true and correct as of each Date of Delivery and, at the
relevant Date of Delivery, the Representatives shall have received:
(i) OFFICERS' CERTIFICATE. A certificate, dated such Date of
Delivery, of the President or a Vice President of the Company and of the
chief financial or chief accounting officer of the Company confirming
that the certificate delivered at the Closing Time pursuant to Section
5(e) hereof remains true and correct as of such Date of Delivery.
(ii) CERTIFICATE OF SELLING STOCKHOLDER AND THE FOUNDER. A
certificate, dated such Date of Delivery, of an Attorney-in-Fact on
behalf of the Selling Stockholder and the Founder confirming that the
certificate delivered at Closing Time pursuant to Section 5(f) hereof
remains true and correct as of such Date of Delivery.
(iii) OPINION OF COUNSEL FOR COMPANY. The favorable opinions of
Baker & Daniels and Woodward, Emhardt, Naughton, Moriarty & McNett, both
counsel for the Company, in form and substance satisfactory to counsel
for the Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to the
same effect as the opinions required by Section 5(b) hereof.
(iv) OPINIONS OF COUNSEL FOR THE SELLING STOCKHOLDER AND THE
FOUNDER. The favorable opinion of Baker & Daniels, counsel for the
Founder, and, if any Option Securities are to be purchased from the
Selling Stockholder on such date, the favorable opinion of Baker &
Daniels, counsel for the Selling Stockholder, in each case, in form and
substance satisfactory to counsel for the Underwriters, dated such Date
of Delivery, relating to the Option Securities to be purchased on such
Date of Delivery and otherwise to the same effect as the opinions
required by Section 5(c) hereof.
(v) OPINION OF COUNSEL FOR UNDERWRITERS. The favorable opinion of
Mayer, Brown & Platt, counsel for the Underwriters, dated such Date of
Delivery, relating to the Option
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Securities to be purchased on such Date of Delivery and otherwise to the
same effect as the opinion required by Section 5(d) hereof.
(vi) BRING-DOWN COMFORT LETTER. A letter from
PricewaterhouseCoopers LLP satisfactory to the Representatives and dated
such Date of Delivery, substantially in the same form and substance as
the letter furnished to the Representatives pursuant to Section 5(h)
hereof, except that the "specified date" in the letter furnished pursuant
to this paragraph shall be a date not more than five days prior to such
Date of Delivery.
(m) ADDITIONAL DOCUMENTS. At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company, the Selling Stockholder and the Founder in connection with
the issuance and sale of the Securities as herein contemplated shall be
satisfactory in form and substance to the Representatives and counsel for the
Underwriters.
(n) TERMINATION OF AGREEMENT. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of the Option
Securities on a Date of Delivery which is after the Closing Time, the
obligations of the several Underwriters to purchase the relevant Option
Securities, may be terminated by the Representatives by notice to the Company at
any time at or prior to Closing Time or such Date of Delivery, as the case may
be, and such termination shall be without liability of any party to any other
party except as provided in Section 4 and except that Sections 1, 6, 7 and 8
shall survive any such termination and remain in full force and effect.
SECTION 6. INDEMNIFICATION.
(a) INDEMNIFICATION OF UNDERWRITERS. The Company, the Founder and the
Selling Stockholder, jointly and severally, agree to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act to the
extent and in the manner set forth in clauses (i), (ii) and (iii) below.
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A Information
and the Rule 434 Information, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
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(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission; provided that (subject to
Section 6(d) below) any such settlement is effected with the written
consent of the Company, the Founder and the Selling Stockholder; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Merrill
Lynch), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto); and PROVIDED, FURTHER that
the liability of the Selling Stockholder under the foregoing indemnity agreement
shall be limited to an amount equal to the initial public offering price of the
shares of Common Stock sold by the Selling Stockholder, less the underwriting
discount, as set forth on the front cover page of the Prospectus.
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS, FOUNDER AND
SELLING STOCKHOLDER. Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, the
Founder, the Selling Stockholder and each person, if any, who controls the
Selling Stockholder within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this Section,
as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying
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party shall not relieve such indemnifying party from any liability hereunder
to the extent it is not materially prejudiced as a result thereof and in any
event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. In the case of parties
indemnified pursuant to Section 6(a) above, counsel to the indemnified
parties shall be selected by Merrill Lynch, and, in the case of parties
indemnified pursuant to Section 6(b) above, counsel to the indemnified
parties shall be selected by the Company, the Selling Stockholder or the
Founder. An indemnifying party may participate at its own expense in the
defense of any such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent
to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising
out of such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
(e) INDEMNIFICATION FOR RESERVED SECURITIES. In connection with the
offer and sale of the Reserved Securities, the Company agrees, promptly upon a
request in writing, to indemnify and hold harmless the Underwriters from and
against any and all losses, liabilities, claims, damages and expenses incurred
by them as a result of the failure of eligible employees and persons having
business relationships with the Company to pay for and accept delivery of
Reserved Securities which, by the end of the first business day following the
date of this Agreement, were subject to a properly confirmed agreement to
purchase.
(f) OTHER AGREEMENTS WITH RESPECT TO INDEMNIFICATION. The provisions of
this Section shall not affect any agreement among the Company, the Founder and
the Selling Stockholder with respect to indemnification.
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(g) RECOVERY OF CLAIMS. Notwithstanding the provisions of Section 6(a)
or 7, each Underwriter agrees with the Founder and the Selling Stockholder that
any claim arising out of a breach of warranty set forth in Section 1(a) or 1(b)
or for indemnity pursuant to Section 6(a) shall first be satisfied by the
Company and shall only then be satisfied by the Founder and the Selling
Stockholder if, and to the extent that, such claim has not been satisfied in
full by the Company. The foregoing limitation shall not prohibit the
Underwriters from proceeding concurrently against the Company, the Founder and
the Selling Stockholder.
SECTION 7. CONTRIBUTION. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, the
Founder and the Selling Stockholder on the one hand and the Underwriters on the
other hand from the offering of the Securities pursuant to this Agreement or
(ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company, the Founder and the Selling Stockholder on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company, the Founder and the
Selling Stockholder on the one hand and the Underwriters on the other hand in
connection with the offering of the Securities pursuant to this Agreement shall
be deemed to be in the same respective proportions as the total net proceeds
from the offering of the Securities pursuant to this Agreement (before deducting
expenses) received by the Company, the Founder and the Selling Stockholder and
the total underwriting discount received by the Underwriters, in each case as
set forth on the cover of the Prospectus (and, in the case of the Founder, as
contemplated by the "Use of Proceeds" section of the Prospectus), or, if Rule
434 is used, the corresponding location on the Term Sheet bear to the aggregate
initial public offering price of the Securities as set forth on such cover.
The relative fault of the Company, the Founder and the Selling
Stockholder on the one hand and the Underwriters on the other hand shall be
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company, the
Founder or the Selling Stockholder or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company, the Founder, the Selling Stockholder and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 7 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this Section 7. The aggregate amount of losses, liabilities, claims, damages
and expenses incurred
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by an indemnified party and referred to above in this Section 7 shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls a
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company or the
Selling Stockholder within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Company or
such Selling Stockholder, as the case may be. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the number of Initial Securities set forth opposite their respective names in
Schedule A hereto and not joint.
The provisions of this Section shall not affect any agreement among the
Company, the Founder and the Selling Stockholder with respect to contribution.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries, the Founder or the Selling Stockholder submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Company, the Founder or the Selling Stockholder, and
shall survive delivery of the Securities to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) TERMINATION; GENERAL. The Representatives may terminate this
Agreement, by notice to the Company, the Founder and the Selling Stockholder, at
any time at or prior to Closing Time (i) if there has been, since the time of
execution of this Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of
26
<PAGE>
business, or (ii) if there has occurred any material adverse change in the
financial markets in the United States or the international financial
markets, any outbreak of hostilities or escalation thereof or other calamity
or crisis or any change or development involving a prospective change in
national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Representatives, impracticable to market the Securities or to enforce
contracts for the sale of the Securities, or (iii) if trading in any
securities of the Company has been suspended or materially limited by the
Commission or the Nasdaq National Market, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq
National Market has been suspended or materially limited, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by any of said exchanges or by such system or by order of the
Commission, the NASD or any other governmental authority, or (iv) if a
banking moratorium has been declared by Federal, New York or Indiana
authorities.
(b) LIABILITIES. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more
of the Underwriters shall fail at Closing Time or a Date of Delivery to purchase
the Securities which it or they are obligated to purchase under this Agreement
(the "Defaulted Securities"), the Representatives shall have the right, within
24 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth. If, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of Securities to be purchased on such date, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the full
amount thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
Securities to be purchased on such date, this Agreement or, with respect to any
Date of Delivery which occurs after the Closing Time, the obligation of the
Underwriters to purchase and of the Company and the Selling Stockholder to sell
the Option Securities to be purchased and sold on such Date of Delivery shall
terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
27
<PAGE>
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after the
Closing Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Company and the Selling Stockholder to sell the
relevant Option Securities, as the case may be, either the (i) Representatives
or (ii) the Company and the Selling Stockholder shall have the right to postpone
Closing Time or the relevant Date of Delivery, as the case may be, for a period
not exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements.
As used herein, the term "Underwriter" includes any person substituted for a
Underwriter under this Section 10.
SECTION 11. DEFAULT BY THE SELLING STOCKHOLDER OR THE COMPANY. (a) If
the Selling Stockholder shall fail at any Date of Delivery to sell and deliver
the number of Securities which the Selling Stockholder is obligated to sell
hereunder, then the Underwriters may, at the option of the Representatives, by
notice from the Representatives to the Company and the Selling Stockholder,
either (a) terminate this Agreement without any liability on the fault of any
non-defaulting party except that the provisions of Sections 1, 4, 6, 7 and 8
shall remain in full force and effect or (b) elect to purchase the Securities
which the Company has agreed to sell hereunder. No action taken pursuant to
this Section 11 shall relieve the Selling Stockholder so defaulting from
liability, if any, in respect of such default.
In the event of a default by the Selling Stockholder as referred to in
this Section 11, each of the Representatives, and the Company shall have the
right to postpone Closing Time for a period not exceeding seven days in order to
effect any required change in the Registration Statement or Prospectus or in any
other documents or arrangements.
(b) If the Company shall fail at Closing Time or at the Date of Delivery
to sell the number of Securities that it is obligated to sell hereunder, then
this Agreement shall terminate without any liability on the part of any
nondefaulting party; provided, however, that the provisions of Sections 1, 4, 6,
7 and 8 shall remain in full force and effect. No action taken pursuant to this
Section shall relieve the Company from liability, if any, in respect of such
default.
SECTION 12. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at North Tower, World
Financial Center, New York, New York 10281-1201, attention of ______________;
notices to the Company, the Founder and the Selling Stockholder shall be
directed to them at Interactive Intelligence, Inc., 8909 Purdue Road, Suite 300,
Indianapolis, Indiana 46268, attention of Donald E. Brown.
SECTION 13. PARTIES. This Agreement shall each inure to the benefit of
and be binding upon the Underwriters, the Company, the Founder and the Selling
Stockholder and their respective successors. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters, the Company, the Founder and the
Selling Stockholder and their respective successors and the controlling persons
and officers and
28
<PAGE>
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement
and all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters, the Company, the Founder and the
Selling Stockholder and their respective successors, and said controlling
persons and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No purchaser of
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS
OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 15. EFFECT OF HEADINGS. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
29
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company, the Founder and an
Attorney-in-Fact for the Selling Stockholder a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters, the Company, the Founder and the Selling Stockholder
in accordance with its terms.
Very truly yours,
INTERACTIVE INTELLIGENCE, INC.
By:
------------------------------------
Name:
---------------------------
Title:
---------------------------
By:
------------------------------------
Donald E. Brown, M.D.
By:
------------------------------------
Title:
---------------------------
as Attorney-in-Fact acting on behalf
of the Selling Stockholder named in
Schedule B hereto
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
HAMBRECHT & QUIST LLC
U.S. BANCORP PIPER JAFFRAY INC.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
---------------------------------------
Authorized Signatory
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
30
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
Name of Underwriter Number of
------------------- Initial Securities
------------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated . . . . . . . . . . . . . .
Hambrecht & Quist LLC. . . . . . . . . . . . . . . . .
U.S. Bancorp Piper Jaffray Inc.. . . . . . . . . . . .
-----------
Total . . . . . . . . . . . . . . . . .
-----------
-----------
</TABLE>
<PAGE>
SCHEDULE B
<TABLE>
<CAPTION>
Maximum Number
Number of Initial of Option
Securities to be Sold Securities to be Sold
--------------------- ---------------------
<S> <C> <C>
Interactive Intelligence Inc.
Selling Stockholder:
--------------------
John R. Gibbs
Total . . . . . . . . . . . .
</TABLE>
<PAGE>
SCHEDULE C
INTERACTIVE INTELLIGENCE, INC.
____ Shares of Common Stock
(Par Value $.01 Per Share)
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $__.
2. The purchase price per share for the Securities to be paid by the several
Underwriters shall be $__, being an amount equal to the initial public
offering price set forth above less $__ per share; provided that the
purchase price per share for any Option Securities purchased upon the
exercise of the over-allotment options described in Section 2(b) shall be
reduced by an amount per share equal to any dividends or distributions
declared by the Company and payable on the Initial Securities but not
payable on the Option Securities.
<PAGE>
SCHEDULE D
Dialogic Investment Corporation
Donald E. Brown, M.D.
John R. Gibbs
Robert A. Compton
John Anton, D.Sc.
Michael P. Cullinane
Joseph M. Adams
Michael J. Tavlin
Jeremiah J. Fleming
Michael E. Ford
Douglas T. Shinsato
Keith A. Midkiff
<PAGE>
EXHIBIT A-1
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company has been duly incorporated and is validly existing as a
corporation under the laws of the State of Indiana.
(ii) The Company has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus
and to enter into and perform its obligations under the Purchase
Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure so to
qualify or to be in good standing would not result in a Material Adverse
Effect.
(iv) The authorized, issued and outstanding capital stock of the Company is as
set forth in the Prospectus in the column entitled "Actual" under the
caption "Capitalization" (except for subsequent issuances, if any,
pursuant to the Purchase Agreement or pursuant to reservations,
agreements or employee benefit plans referred to in the Prospectus or
pursuant to the exercise of convertible securities or options referred to
in the Prospectus); the shares of issued and outstanding capital stock of
the Company, including the Securities to be purchased by the Underwriters
from the Selling Stockholder, have been duly authorized and validly
issued and are fully paid and non-assessable; and none of the
outstanding shares of capital stock of the Company was issued in
violation of preemptive or, to the best of such counsel's knowledge,
other similar rights of any securityholder of the Company.
(v) The Securities to be purchased by the Underwriters from the Company have
been duly authorized for issuance and sale to the Underwriters pursuant
to the Purchase Agreement, and, when issued and delivered by the Company
pursuant to the Purchase Agreement against payment of the consideration
set forth in the Purchase Agreement will be validly issued and fully paid
and non-assessable and no holder of the Securities is or will be subject
to personal liability by reason of being such a holder.
(vi) The issuance and sale of the Securities by the Company and the sale of
the Securities by the Selling Stockholder is not subject to preemptive
or, to the best of such counsel's knowledge, other similar rights of any
securityholder of the Company.
A-1
<PAGE>
(vii) The Purchase Agreement has been duly authorized, executed and delivered
by the Company.
(viii) The Registration Statement, including any Rule 462(b) Registration
Statement, has been declared effective under the 1933 Act; any required
filing of the Prospectus pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); and, to the
best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and, to the
best knowledge of such counsel, no proceedings for that purpose have been
instituted or are pending or threatened by the Commission.
(ix) The Registration Statement, including any Rule 462(b) Registration
Statement, the Rule 430A Information and the Rule 434 Information, as
applicable, the Prospectus, and each amendment or supplement to the
Registration Statement and Prospectus, as of their respective effective
or issue dates (other than the financial statements and supporting
schedules included therein or omitted therefrom, as to which such counsel
need express no opinion) complied as to form in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations.
(x) The form of certificate used to evidence the Common Stock complies in all
material respects with all applicable statutory requirements, with any
applicable requirements of the charter and by-laws of the Company and the
requirements of the Nasdaq National Market.
(xi) Except as disclosed in the Prospectus, to the best of such counsel's
knowledge, there is not pending or threatened any action, suit,
proceeding, inquiry or investigation, to which the Company or any
subsidiary is a party, or to which the property of the Company or any
subsidiary is subject, before or brought by any court or governmental
agency or body, domestic or foreign, which might reasonably be expected
to result in a Material Adverse Effect, or which might reasonably be
expected to materially and adversely affect the properties or assets
thereof or the consummation of the transactions contemplated in the
Purchase Agreement or the performance by the Company of its obligations
thereunder.
(xii) The information in the Prospectus under "Description of Capital Stock,"
"Business--Intellectual Property and other Proprietary Rights,"
"Business--Facilities," "Business--Legal Proceedings" and in the
Registration Statement under Item 14, to the extent that it constitutes
matters of law, summaries of legal matters, the Company's charter and
bylaws or legal proceedings, or legal conclusions, has been reviewed by
such counsel and is correct in all material respects.
(xiii) To the best of such counsel's knowledge, there are no statutes or
regulations that are required to be described in the Prospectus that are
not described as required.
A-2
<PAGE>
(xiv) All descriptions in the Registration Statement of contracts and other
documents to which the Company or its subsidiaries are a party are
accurate in all material respects; to the best of such counsel's
knowledge, there are no franchises, contracts, indentures, mortgages,
loan agreements, notes, leases or other instruments required to be
described or referred to in the Registration Statement or to be filed as
exhibits thereto other than those described or referred to therein or
filed or incorporated by reference as exhibits thereto, and the
descriptions thereof or references thereto are correct in all material
respects.
(xv) To the best of such counsel's knowledge, neither the Company nor any
subsidiary is in violation of its charter or by-laws and no default by
the Company or any subsidiary exists in the due performance or observance
of any material obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument that is described or referred to in the
Registration Statement or the Prospectus or filed or incorporated by
reference as an exhibit to the Registration Statement.
(xvi) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign (other than under the 1933 Act
and the 1933 Act Regulations, which have been obtained, or as may be
required under the securities or blue sky laws of the various states, as
to which such counsel need express no opinion) is necessary or required
in connection with the due authorization, execution and delivery of the
Purchase Agreement or for the offering, issuance, sale or delivery of the
Securities.
(xvii) The execution, delivery and performance of the Purchase Agreement and the
consummation of the transactions contemplated in the Purchase Agreement
and in the Registration Statement (including the issuance and sale of the
Securities and the use of the proceeds from the sale of the Securities as
described in the Prospectus under the caption "Use of Proceeds") and
compliance by the Company with its obligations under the Purchase
Agreement do not and will not, whether with or without the giving of
notice or lapse of time or both, conflict with or constitute a breach of,
or default or Repayment Event (as defined in Section 1(a)(x) of the
Purchase Agreement) under or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or
any subsidiary pursuant to any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or any other agreement or
instrument, known to such counsel, to which the Company or any subsidiary
is a party or by which it or any of them may be bound, or to which any of
the property or assets of the Company or any subsidiary is subject
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a Material Adverse Effect), nor will
such action result in any violation of the provisions of the charter or
by-laws of the Company or any subsidiary, or any applicable law, statute,
rule, regulation, judgment, order, writ or decree, known to such counsel,
of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any subsidiary or any of
their respective properties, assets or operations.
A-3
<PAGE>
(xviii) To the best of such counsel's knowledge, there are no persons with
registration rights or other similar rights to have any securities
registered pursuant to the Registration Statement or otherwise
registered by the Company under the 1933 Act.
(xix) The Company is not an "investment company" or an entity "controlled" by
an "investment company," as such terms are defined in the 1940 Act.
Nothing has come to such counsel's attention that has led such counsel to
believe that the Registration Statement or any amendment thereto, including the
Rule 430A Information and Rule 434 Information (if applicable) (except for
financial statements and schedules and other financial data included therein or
omitted therefrom, as to which such counsel need make no statement), at the time
such Registration Statement or any such amendment became effective, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or that the Prospectus or any amendment or supplement thereto (except for
financial statements and schedules and other financial data included therein or
omitted therefrom, as to which such counsel need make no statement), at the time
the Prospectus was issued, at the time any such amended or supplemented
prospectus was issued or at the Closing Time, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
A-4
<PAGE>
EXHIBIT B
FORM OF OPINION OF COUNSEL FOR THE SELLING STOCKHOLDER
TO BE DELIVERED PURSUANT TO SECTION 5(c)
(i) No filing with, or consent, approval, authorization, license, order,
registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign, (other than the issuance of the
order of the Commission declaring the Registration Statement effective
and such authorizations, approvals or consents as may be necessary under
state securities laws, as to which such counsel need express no opinion)
is necessary or required to be obtained by the Selling Stockholder for
the performance of his obligations under the Purchase Agreement or in the
Power of Attorney and Custody Agreement, or in connection with the offer,
sale or delivery of the Securities.
(ii) The Power of Attorney and Custody Agreement has been duly executed and
delivered by the Selling Stockholder and constitutes the legal, valid and
binding agreement of the Selling Stockholder.
(iii) The Purchase Agreement has been duly authorized, executed and delivered
by or on behalf of the Selling Stockholder.
(iv) The Attorney-in-Fact has been duly authorized by the Selling Stockholder
to deliver the Securities on behalf of the Selling Stockholder in
accordance with the terms of the Purchase Agreement.
(v) The execution, delivery and performance of the Purchase Agreement and the
Power of Attorney and Custody Agreement and the sale and delivery of the
Securities and the consummation of the transactions contemplated in the
Purchase Agreement and in the Registration Statement and compliance by
the Selling Stockholder with his obligations under the Purchase Agreement
have been duly authorized by all necessary action on the part of the
Selling Stockholder and do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or constitute
a breach of, or default under or result in the creation or imposition of
any tax, lien, charge or encumbrance upon the Securities or any property
or assets of the Selling Stockholder pursuant to, any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
license, lease or other instrument or agreement known to such counsel to
which the Selling Stockholder is a party or by which he may be bound, or
to which any of the property or assets of the Selling Stockholder may be
subject nor will such action result in any violation of the provisions of
any law, administrative regulation, judgment or order known to such
counsel of any governmental agency or body or any administrative or court
decree having jurisdiction over the Selling Stockholder or any of his
properties.
(vi) To the best of such counsel's knowledge, the Selling Stockholder has
valid and marketable title to the Securities to be sold by the Selling
Stockholder pursuant to the Purchase
B-1
<PAGE>
Agreement, free and clear of any pledge, lien, security interest,
charge, claim, equity or encumbrance of any kind, and has full right,
power and authority to sell, transfer and deliver such Securities
pursuant to the Purchase Agreement. By delivery of a certificate or
certificates therefor the Selling Stockholder will transfer to the
Underwriters who have purchased such Securities pursuant to the
Purchase Agreement (without notice of any defect in the title of such
Selling Stockholder and who are otherwise bona fide purchasers for
purposes of the Uniform Commercial Code) valid and marketable title to
such Securities, free and clear of any pledge, lien, security
interest, charge, claim, equity or encumbrance of any kind.
Nothing has come to such counsel's attention that has led such counsel to
believe that the Registration Statement or any amendment thereto, including the
Rule 430A Information and Rule 434 Information (if applicable), (except for
financial statements and schedules and other financial data included therein or
omitted therefrom, as to which such counsel need make no statement), at the time
such Registration Statement or any such amendment became effective, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or that the Prospectus or any amendment or supplement thereto (except for
financial statements and schedules and other financial data included therein or
omitted therefrom, as to which such counsel need make no statement), at the time
the Prospectus was issued, at the time any such amended or supplemented
prospectus was issued or at the Closing Time, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Such opinion shall
not state that it is to be governed or qualified by, or that it is otherwise
subject to, any treatise, written policy or other document relating to legal
opinions, including, without limitation, the Legal Opinion Accord of the ABA
Section of Business Law (1991).
B-2
<PAGE>
EXHIBIT C
FORM OF OPINION OF COUNSEL FOR THE FOUNDER
TO BE DELIVERED PURSUANT TO SECTION 5(c)
(i) No filing with, or consent, approval, authorization, license, order,
registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign, (other than the issuance of the
order of the Commission declaring the Registration Statement effective
and such authorizations, approvals or consents as may be necessary under
state securities laws, as to which such counsel need express no opinion)
is necessary or required to be obtained by the Founder for the
performance by him of his obligations under the Purchase Agreement.
(ii) The Purchase Agreement has been duly authorized, executed and delivered
by or on behalf of the Founder.
(iii) The execution, delivery and performance of the Purchase Agreement and the
consummation of the transactions contemplated in the Purchase Agreement
and in the Registration Statement and compliance by the Founder with his
obligations under the Purchase Agreement have been duly authorized by all
necessary action on the part of the Founder and do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default under or result in
the creation or imposition of any tax, lien, charge or encumbrance upon
the Securities or any property or assets of the Founder pursuant to, any
contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, license, lease or other instrument or agreement known to such
counsel to which the Founder is a party or by which he may be bound, or
to which any of the property or assets of the Founder may be subject nor
will such action result in any violation of any law, administrative
regulation, judgment or order known to such counsel of any governmental
agency or body or any administrative or court decree having jurisdiction
over the Founder or any of his properties.
Nothing has come to such counsel's attention that has led such counsel to
believe that the Registration Statement or any amendment thereto, including the
Rule 430A Information and Rule 434 Information (if applicable), (except for
financial statements and schedules and other financial data included therein or
omitted therefrom, as to which such counsel need make no statement), at the time
such Registration Statement or any such amendment became effective, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or that the Prospectus or any amendment or supplement thereto (except for
financial statements and schedules and other financial data included therein or
omitted therefrom, as to which such counsel need make no statement), at the time
the Prospectus was issued, at the time any such amended or supplemented
prospectus was issued or at the Closing Time, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
C-1
<PAGE>
circumstances under which they were made, not misleading. Such opinion shall not
state that it is to be governed or qualified by, or that it is otherwise subject
to, any treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA Section of
Business Law (1991).
C-2
<PAGE>
EXHIBIT D
[FORM OF LOCK-UP FROM DIRECTORS, OFFICERS OR OTHER STOCKHOLDERS PURSUANT TO
SECTION 5(k)]
______, 1999
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated,
Hambrecht & Quist LLC
U.S. Bancorp Piper Jaffray Inc.
as Representatives of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Re: PROPOSED PUBLIC OFFERING BY INTERACTIVE INTELLIGENCE, INC.
Ladies and Gentlemen:
The undersigned, a stockholder [AND AN OFFICER AND/OR DIRECTOR] of
Interactive Intelligence, Inc., an Indiana corporation (the "Company"),
understands that Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch"), Hambrecht & Quist LLC and U.S. Bancorp Piper
Jaffray Inc. propose to enter into a Purchase Agreement (the "Purchase
Agreement") with the Company and the Selling Stockholder providing for the
public offering of shares (the "Securities") of the Company's common stock, par
value $.01 per share (the "Common Stock"). In recognition of the benefit that
such an offering will confer upon the undersigned as a stockholder [AND AN
OFFICER AND/OR DIRECTOR] of the Company, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
undersigned agrees with each underwriter to be named in the Purchase Agreement
that, during a period of 180 days from the date of the Purchase Agreement, the
undersigned will not, without the prior written consent of Merrill Lynch,
directly or indirectly, (i) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant for the sale of, or otherwise dispose of or
transfer any shares of the Company's Common Stock or any securities convertible
into or exchangeable or exercisable for Common Stock, whether now owned or
hereafter acquired by the undersigned or with respect to which the undersigned
has or hereafter acquires the power of disposition, or file any registration
statement under the Securities Act of 1933, as amended, with
D-1
<PAGE>
respect to any of the foregoing or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock,
whether any such swap or transaction is to be settled by delivery of Common
Stock or other securities, in cash or otherwise.
Very truly yours,
Signature:
------------------------------
Print Name:
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EXHIBIT 5
BAKER & DANIELS
300 NORTH MERIDIAN STREET, SUITE 2700, INDIANAPOLIS, INDIANA 46204
(317) 237-0300. FAX (317) 237-1000
July 23, 1999
Interactive Intelligence, Inc.
8909 Purdue Road, Suite 300
Indianapolis, IN 46268
Ladies and Gentlemen:
We have examined the corporate records and proceedings of
Interactive Intelligence, Inc., an Indiana corporation (the "Company"), with
respect to: (a) the organization of the Company and (b) the legal sufficiency
of all corporate proceedings of the Company taken in connection with the
authorization, issuance, form, validity and nonassessability of the shares
(including the shares to cover an over-allotment option) of Common Stock,
$0.01 par value per share, of the Company ("Common Stock") to be offered for
sale by the Company and a selling stockholder under the Company's
Registration Statement on Form S-1 (Registration No. 333-79509) (the
"Registration Statement"), in connection with which this opinion is given.
Based on such examination, we are of the opinion that:
1. The Company is a duly organized and validly existing
corporation under the laws of the State of Indiana.
2. The Company is authorized to have outstanding 100,000,000
shares of Common Stock.
3. The shares of Common Stock being offered by the selling
stockholder pursuant to the Registration Statement are legally issued, fully
paid and nonassessable.
4. The shares of Common Stock being offered by the Company
pursuant to the Registration Statement are validly authorized and, when the
Registration Statement shall have become effective and the authorized but
unissued shares of Common Stock being offered by the Company pursuant thereto
have been sold upon the terms and conditions described in the Registration
Statement and set forth in the Purchase Agreement filed as an exhibit to the
Registration Statement, all of such shares will be legally issued, fully paid
and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and to the reference to us under the heading "Legal
Matters" in the Prospectus which is a part of the Registration Statement. In
giving this consent, we do not admit that we come within the category of
persons whose consent is required under Section 7 of the Act or rules and
regulations of the Securities and Exchange Commission promulgated thereunder.
Yours very truly,
BAKER & DANIELS
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Exhibit 10.1
INTERACTIVE INTELLIGENCE, INC.
1995 INCENTIVE STOCK OPTION PLAN
(Adopted Effective August 14, 1995)
(Restated to reflect amendments adopted by the Board of Directors on
November 11, 1997 and July 12, 1999)
1. PURPOSE OF THE PLAN. The purposes of this Incentive Stock Option
Plan are to attract and retain the best available personnel, to provide
additional incentive to the Employees of Interactive Intelligence, Inc. (the
"Company") and to promote the success of the Company's business.
2. DEFINITIONS. As used herein, the following definitions shall apply:
(a) "BOARD" shall mean the Board of Directors of the Company.
(b) "CODE" shall mean the Internal Revenue Code of 1986, as amended.
(c) "COMMON STOCK" shall mean the Common Stock of the Company.
(d) "COMPANY" shall mean Interactive Intelligence, Inc., an Indiana
corporation.
(e) "CONTINUOUS STATUS AS AN EMPLOYEE" shall mean the absence of any
interruption or termination of service as an Employee. Continuous Status as an
Employee shall not be considered interrupted in the case of sick leave, military
leave, or any other leave of absence approved by the Company management;
provided that such leave is for a period of not more than 90 days or
reemployment upon the expiration of such leave is guaranteed by contract or
statute.
(f) "EMPLOYEE" shall mean any person, including officers and directors,
employed by the Company or any Parent or Subsidiary of the Company. The payment
of a director's fee by the Company shall not be sufficient to constitute
"employment" by the Company.
(g) "INCENTIVE STOCK OPTION" shall mean an Option intended to qualify
as an incentive stock option within the meaning of Section 422 of the Code.
(h) "OPTION" shall mean a stock option granted pursuant to the Plan.
(i) "OPTIONED STOCK" or "Option Shares" shall mean the Common Stock
subject to an Option.
(j) "OPTIONEE" shall mean an Employee who receives an Option.
(k) "PARENT" shall mean a "parent corporation," whether now or
hereafter existing, as defined in Section 424(e) of the Code.
(l) "PLAN" shall mean this Incentive Stock Option Plan.
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(m) "SHARE" shall mean a share of the Common Stock, as adjusted in
accordance with Section 10 of the Plan.
(n) "SUBSIDIARY" shall mean a "subsidiary corporation," whether now or
hereafter existing, as defined in Section 424(f) of the Code.
3. STOCK SUBJECT TO THE PLAN. Subject to the provisions of Section 10
of the Plan, the maximum aggregate number of Shares under the Plan is two
million five hundred thousand (2,500,000) Shares of Common Stock. The Shares may
be authorized, but unissued, or reacquired Common Stock. If any Option should
expire or become unexercisable for any reason without having been exercised in
full, then the unpurchased Shares which were subject thereto shall, unless the
Plan shall have been terminated, become available for future grant or sale under
the Plan.
4. ADMINISTRATION OF THE PLAN.
(a) PROCEDURE. The Plan shall be administered by the Board of Directors
of the Company.
(b) POWERS OF THE BOARD. Subject to the provisions of the Plan, the
Board shall have the authority, in its discretion: (i) to grant Incentive Stock
Options; (ii) to determine, upon review of relevant information and in
accordance with Section 7 of the Plan, the fair market value of the Common Stock
as of the date of the grant of such Options, provided that if pursuant to
Section 11 hereof the date of grant is after the date on which the Board or the
Committee as applicable, has acted to approve the Options, such determination
shall be made by the Board or the Committee, as applicable, on or promptly after
(but as of ) the effective date of grant; (iii) to determine the exercise price
per share of Options to be granted, which exercise price shall be determined in
accordance with Section 7 of the Plan; (iv) to determine the Employees to whom,
and the time or times at which, Options shall be granted and the number of
shares to be represented by each Option; (v) to interpret the Plan; (vi) to
prescribe, amend and rescind rules and regulations relating to the Plan; (vii)
to determine the terms and provisions of each Option granted (which need not be
identical) and, with the consent of the holder thereof, modify or amend each
Option; (viii) to accelerate or defer (with the consent of the Optionee) the
exercise date of any Option, consistent with the provisions of the Plan; (ix) to
authorize any person to execute on behalf of the Company any instrument required
to effectuate the grant of an Option previously granted by the Board; (x) to
appoint an administrative committee ("Committee") which is authorized to grant
Options under the Plan to eligible employees and which shall consist of such
number of persons who are members of the Board and shall have other authorities
or be subject to such limitations as the Board in its discretion shall
determine; and (xi) to make all other determinations deemed necessary or
advisable for the administration of the Plan.
(c) VESTING OF OPTIONS. Unless otherwise determined by the Board and
set forth in the relevant Option Agreement, Options shall become exercisable for
(i) 20% of the Option Shares on the first anniversary of the date on which the
Participant commenced employment with the Company if granted in connection with
the commencement of employment or the date determined by the Board of the
Committee, as applicable, if granted other than in connection with the
commencement of employment ("Commencement Date"), (ii) 20% of the Option Shares
on the second anniversary of the Commencement Date, (iii) 20% of the Option
Shares on the third anniversary of the Commencement Date, (iv) 20% of the Option
Shares on the fourth anniversary of the Commencement Date, and (v) 20%
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of the Option Shares on the fifth anniversary of the Commencement Date.
(d) ACCELERATED VESTING OF OPTIONS. The Board of Directors reserves the
right, in its sole and absolute discretion, to accelerate the date on which the
Options granted herein shall become vested and exercisable for the entire Option
Shares (to the extent not previously vested or exercised) to the date
immediately prior to the consummation of any of the following events: (i) the
sale or transfer by the Company of all or substantially all of its assets; (ii)
the sale or exchange in one transaction of outstanding shares of the Company
having at least two-thirds (2/3) of the total number of votes that may be cast
for the election of the Board; (iii) any cash tender offer or exchange offer,
contested election, or any combination of the foregoing transactions, as a
result of which the persons who are Directors of the Company before the
transaction shall cease to constitute a majority of the Board or of the board of
directors of any successor to the Company; or (iv) any merger or other business
combination or similar action of the Company in which the Shareholders of the
Company receive less than fifty percent (50%) voting interest in the new
continuing entity. If the Board exercises its rights to accelerate the Options
as provided herein, the Board shall notify each Optionee that the vesting and
exercisability has been accelerated and that the Option is subject to lapse and
termination if not timely exercised, which notice shall be given at least five
(5) days prior to the consummation of the events set forth in subparagraph (i),
(ii), (iii) or (iv) giving rise to such acceleration. In the event and to the
extent that the Board exercises its right to accelerate the vesting of the
Options as provided herein but an Optionee does not exercise an Option upon
occurrence of one of the events described in subparagraphs (i), (ii), (iii) and
(iv) above, then such Option shall lapse and terminate upon consummation of such
event.
(e) EFFECT OF BOARD'S DECISION. All decisions, determinations and
interpretations of the Board shall be final and binding on all Optionees and any
other holders of any Options granted under the Plan.
5. ELIGIBILITY.
(a) Incentive Stock Options may be granted only to Employees. An
Employee who has been granted an Option may, if such Employee is otherwise
eligible, be granted additional Option(s).
(b) No Incentive Stock Option may be granted to an Employee which, when
aggregated with all other incentive stock options granted to such Employee by
the Company or any Parent or Subsidiary, would result in Shares having an
aggregate fair market value (determined for each Share as of the date of grant
of the Option covering such Share) in excess of $100,000 becoming first
available to purchase upon exercise of one or more incentive stock options
during any calendar year.
(c) The Plan shall not confer upon any Optionee any right with respect
to continuation of employment by the Company, nor shall it interfere in any way
with his or her right or the Company's right to terminate his or her employment
or services at any time, with or without cause.
6. TERM OF PLAN. The Plan shall become effective upon the earlier to
occur of its adoption by the Board of Directors or its approval by the
shareholders of the Company. It shall continue in effect for a term of ten (10)
years unless sooner terminated under Section 12 of the Plan.
7. EXERCISE PRICE AND CONSIDERATION.
(a) The per Share exercise price for the Shares to be issued pursuant
to exercise of an Option
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shall be such price as is determined by the Board, but shall be subject to the
following:
(i) In the case of an Incentive Stock Option
(A) granted to an Employee who, at the time of the
grant of such Incentive Stock Option, owns stock representing more than ten
percent (10%) of the voting power of all classes of stock of the Company or any
Parent or Subsidiary, the per Share exercise price shall be no less than 110% of
the fair market value per Share on the date of grant.
(B) granted to any Employee, the per Share exercise
price shall be no less than 100% of the fair market value per Share on the date
of grant.
(b) The fair market value shall be determined by the Board in its
discretion exercised in good faith; provided, however, that where there is a
public market for the Common Stock, the fair market value per Share shall be the
mean of the bid and asked prices (or the closing price per share if the Common
Stock is listed on the National Association of Securities Dealers Automated
Quotation ("NASDAQ") National Market System) of the Common Stock for the date of
grant, as reported in the WALL STREET JOURNAL (or, if not so reported, as
otherwise reported by the NASDAQ System) or, in the event the Common Stock is
listed on a stock exchange, the fair market value per Share shall be the closing
price on such exchange on the date of grant of the Option, as reported in the
WALL STREET JOURNAL.
(c) The consideration to be paid for the Shares to be issued upon
exercise of an Option, including the method of payment, shall be determined by
the Board and may consist entirely of cash, check, promissory note, other Shares
of Common Stock having a fair market value on the date of surrender equal to the
aggregate exercise price of the Shares as to which said Option shall be
exercised, or any combination of such methods of payment, or such other
consideration and method of payment for the issuance of Shares to the extent
permitted under the Indiana Business Corporation Law.
8. OPTIONS.
(a) TERM OF OPTION. The term of each Incentive Stock Option shall be
ten (10) years from the date of grant thereof or such shorter term as may be
provided in the Incentive Stock Option Agreement. However, in the case of an
Option granted to an Employee who, at the time the Option is granted, owns stock
representing more than ten percent (10%) of the voting power of all classes of
stock of the Company or any Parent or Subsidiary, the term of the Option shall
be five (5) years from the date of grant thereof or such shorter time as may be
provided in the Stock Option Agreement.
(b) EXERCISE OF OPTION.
(i) PROCEDURE FOR EXERCISE; RIGHTS AS A SHAREHOLDER. Any Option granted
hereunder shall be exercisable at such times and under such conditions as
determined by the Board, including performance criteria with respect to the
Company and/or the Optionee, and as shall be permissible under the terms of the
Plan.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written notice of such
exercise has been given
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to the Company in accordance with the terms of the Option by the person entitled
to exercise the Option and full payment for the shares with respect to which the
Option is exercised has been received by the Company. Full payment may, as
authorized by the Board, consist of any consideration and method of payment
allowable under Section 7 of the Plan. Until the issuance (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized transfer
agent of the Company) of the stock certificate evidencing such Shares, no right
to vote or receive dividends or any other rights as a shareholder shall exist
with respect to the Optioned Stock, notwithstanding the exercise of the Option.
The Company shall issue (or cause to be issued) such stock certificate promptly
upon exercise of the Option. No adjustment will be made for a dividend or other
right for which the record date is prior to the date the stock certificate is
issued, except as provided in Section 10 of the Plan.
Exercise of an Option in any manner shall result in a decrease in the
number of Shares which thereafter may be available, both for purposes of the
Plan and for sale under the Option, by the number of Shares as to which the
Option is exercised.
(ii) TERMINATION OF STATUS AS AN EMPLOYEE. In the event of termination
of an Optionee's Continuous Status as an Employee, the Employee may, but only
within thirty (30) days after the date of such termination (but in no event
later than the date of expiration of the term of such Option as set forth in the
Option Agreement), exercise the Options to the extent that the Employee was
entitled to exercise the Options at the date of such termination. To the extent
that the Employee was not entitled to exercise the Options at the date of such
termination, or if the Employee does not exercise such Options (which the
Employee was entitled to exercise) within the time specified herein, the Options
shall terminate.
(iii) DISABILITY OF OPTIONEE. Notwithstanding the provisions of Section
8(b)(ii) above, in the event of termination of an Optionee's Continuous Status
as an Employee as a result of such Employee's total and permanent disability (as
defined in Section 22(e)(3) of the Code), such Employee may, but only within six
(6) months (or such other period of time not exceeding twelve (12) months as is
determined by the Board, with such determination being made at the time of grant
of the Option) from the date of such termination (but in no event later than the
date of expiration of the term of such Option as set forth in the Option
Agreement), exercise the Option to the extent such Employee was entitled to
exercise it at the date of such termination. To the extent such Employee was not
entitled to exercise the Option at the date of termination, or if such Employee
does not exercise such Option (which such Employee was entitled to exercise)
within the time specified herein, the Option shall terminate.
(iv) DEATH OF OPTIONEE. In the event of the death of an Optionee during
the term of the Option who is at the time of his or her death an Employee of the
Company and who shall have been in Continuous Status as an Employee since the
date of grant of the option, the Option may be exercised, at any time within six
(6) months (or such other period of time as is determined by the Board at the
time of grant of the Option) following the date of death (but in no event later
than the date of expiration of the term of such Option as set forth in the
Option Agreement), by the Optionee's estate or by a person who acquired the
right to exercise the Option by bequest or inheritance, but only to the extent
of the right to exercise that would have accrued had the Optionee continued
living and remained in Continuous Status as an Employee six (6) months (or such
other period of time as is determined by the Board at the time of grant of the
Option) after the date of death, subject to the limitation set forth in Section
5(b).
(c) VALIDITY OF OPTIONS. Notwithstanding any other provisions of
this Plan, if for any reason any Option heretofore or hereafter granted under
this Plan shall fail to qualify as an Incentive Stock Option, such Option
shall be deemed to be a non-qualified stock option (i.e. an option not
intended to qualify as an Incentive Stock Option), and such Option shall be
deemed to be fully authorized and validly issued under this Plan.
9. NON-TRANSFERABILITY OF OPTIONS. The Options may not be sold,
pledged, assigned,
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hypothecated, transferred, or disposed of in any manner other than by will or by
the laws of descent or distribution and may be exercised during the lifetime of
the Optionee only by the Optionee.
10. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER. Subject to
any required action by the shareholders of the Company, the number of shares of
Common Stock covered by each outstanding Option and the number of shares of
Common Stock which have been authorized for issuance under the Plan but as to
which no Options have yet been granted or which have been returned to the Plan
upon cancellation or expiration of an Option, as well as the price per share of
Common Stock covered by each such outstanding Option, shall be proportionately
adjusted for any increase or decrease in the number of issued shares of Common
Stock resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock of the Company or the
payment of a stock dividend with respect to the Common Stock or any other
increase or decrease in the number of issued shares of Common Stock effected
without receipt of consideration by the Company; provided, however, that
conversion of any convertible securities of the Company shall not be deemed to
have been "effected without receipt of consideration." Such adjustment shall be
made by the Board, whose determination in that respect shall be final, binding
and conclusive, absent manifest error or willful misconduct. Except as expressly
provided herein, no issuance by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or price
of shares of Common Stock subject to an Option.
In the event of the proposed dissolution or liquidation of the Company,
the Option will terminate immediately prior to the consummation of such proposed
action, unless otherwise provided by the Board. The Board may, in the exercise
of its sole discretion in such instances, declare that any Option shall
terminate as of a date fixed by the Board and give each Optionee the right to
exercise his or her Option as to all or any part of the Optioned Stock,
including Shares as to which the Option would not otherwise be exercisable.
11. TIME OF GRANT. The date of grant of an Option shall be, for all
purposes, the later of (i) the date on which the Board or the Committee makes
the determination granting such Option, or (ii) the Commencement Date. Notice of
the determination shall be given to each Employee to whom an Option is so
granted within a reasonable time after the date of such grant.
12. AMENDMENT AND TERMINATION OF THE PLAN.
(a) AMENDMENT AND TERMINATION. The Board may amend or terminate the
Plan from time to time in such respects as the Board may deem advisable;
provided that the following revisions or amendments shall require approval of
the shareholders of the Company in the manner described in Section 16 of the
Plan:
(i) any increase in the number of Shares subject to the Plan, other
than in connection with an adjustment under Section 10 of the Plan;
(ii) any change in the designation of the class of persons eligible to
be granted Options; or
(iii) if the Company has a class of equity securities registered under
Section 12 of the Securities Exchange Act of 1934 (the "Exchange Act") at the
time of such revision or amendment, any
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material increase in the benefits accruing to participants under the Plan.
(b) SHAREHOLDER APPROVAL. If any amendment requiring shareholder
approval under Section 12(a) of the Plan is made subsequent to the first
registration of any class of equity securities by the Company under Section 12
of the Exchange Act, such shareholder approval shall be solicited as described
in Section 16 of the Plan.
(c) EFFECT OF AMENDMENT OR TERMINATION. Any such amendment or
termination of the Plan shall not affect Options already granted and such
Options shall remain in full force and effect as if this Plan had not been
amended or terminated, unless mutually agreed otherwise between the Optionee and
the Company, which agreement must be in writing and signed by the Optionee and
the Company.
13. CONDITIONS UPON ISSUANCE OF SHARES. Shares shall not be issued
pursuant to the exercise of an Option unless the exercise of such Option and the
issuance and delivery of such Shares pursuant thereto shall comply with all
relevant provisions of law, including, without limitation, the Securities Act of
1933, as amended, the Exchange Act, the rules and regulations promulgated
thereunder, and the requirements of any stock exchange upon which the Shares may
then be listed, and shall be further subject to the approval of counsel for the
Company with respect to such compliance.
As a condition to the exercise of an Option, the Company may require
the person exercising such Option to represent and warrant at the time of any
such exercise that the Shares are being purchased only for investment and
without any present intention to sell or distribute such Shares if, in the
opinion of counsel for the Company, such a representation is required by any of
the aforementioned relevant provisions of law.
The inability of the Company to obtain authority from any regulatory
body having jurisdiction, which authority is deemed by the Company's counsel to
be necessary to the lawful issuance and sale of any Shares hereunder, shall
relieve the Company of any liability in respect of the failure to issue or sell
such Shares as to which such requisite authority shall not have been obtained.
14. REPURCHASE OF SHARES AND RESTRICTION ON TRANSFER. The Company shall
have the right upon written notice to an Optionee to buy back any stock
purchased by such Optionee pursuant to the exercise of the Option upon
termination of the Optionee's Continuous Status as an Employee for any reason on
the following terms and conditions:
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(a) The Company's right under this Section shall expire on the earlier
of (i) the effective date of the registration of any of the Common Stock
pursuant to an initial public offering thereof, or (ii) two (2) years after
termination of an Optionee's Continuous Status as an Employee.
(b) The Company may exercise this right as to all or any portion of the
stock purchase by the Optionee pursuant hereto.
(c) The purchase price of any stock acquired pursuant to the exercise
of such right shall be the fair market value of the shares on the date of
exercise, determined pursuant to Section 7(b) of the Plan.
(d) The payment may be made all in cash or other immediately available
funds or part cash with the balance being paid pursuant to the Company's
promissory note, with a maturity selected by the Company of not more than two
(2) years and with interest on either a fixed or floating basis as elected by
the Company at a rate equal to the prime rate as published by the financial
institution selected by the Company as its primary bank. If the Company elects
to utilize a note in the payment of the amounts due hereunder, payment shall be
made thereunder at least annually.
(e) The closing of the transaction shall occur within ten (10) days
after the Company's notice. The Optionee shall deliver to the Company
certificates representing all of the Shares with respect to which the Company
has exercised its rights hereunder, together with such transfer documents as may
be necessary to transfer good and marketable title to such Shares to the
Company, including without limitation, stock powers with signatures guaranteed
and applicable transfer stamps, if any, and shall provide to the Company such
representations and warranties as the Company may reasonably request with
respect to the ownership of such shares and other material matters. All of such
Shares shall be transferred to the Company free and clear of any liens, claims,
pledges, or other encumbrances of any kind.
(f) Until the expiration of the repurchase rights set forth herein, the
Optionee shall not sell, assign, donate, pledge, or otherwise transfer any
interest in any of the Common Shares issued to the Optionee pursuant to the
exercise of the Option, without the prior written consent of the Company. The
Optionee agrees to give to the Company any information regarding the proposed
transfer as the Company may reasonably request. Any attempted transfer shall be
void and of no force or effect, and the Company shall have no obligation to
cause any transfer thereof to be made on its books and records. The Company will
give or withhold its consent in good faith. Any transferee with respect to whom
the Company has given its consent will take such transferred shares subject to
the terms and conditions of the Plan and will execute and deliver to the Company
such confirmations and other documents as the Company might reasonably require.
15. LEGENDS. Certificates for any Shares issued upon exercise of an
Option shall carry a legend indicating that transfer is subject to compliance
with applicable securities laws and that the Shares are subject to a repurchase
right and other restrictions on transfer set forth herein.
16. RESERVATION OF SHARES. The Company, during the terms of this Plan,
will at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
17. OPTION AGREEMENTS. Options shall be evidenced by written option
agreements in such
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form as the Board shall approve.
18. SHAREHOLDER APPROVAL.
(a) Continuance of the Plan shall be subject to approval by the
shareholders of the Company within twelve (12) months before or after the date
the Plan is adopted.
(b) If and in the event that the Company registers any class of equity
securities pursuant to Section 12 of the Exchange Act, any required approval of
the shareholders of the Company obtained after such registration shall be
solicited substantially in accordance with Section 14(a) of the Exchange Act and
the rules and regulations promulgated thereunder.
19. INFORMATION TO OPTIONEES. The Company shall provide to each
Optionee, immediately prior to the exercise of an Option, a copy of the most
recent annual financial statement of the Company, and copies of all other
information provided to shareholders of the Company at the last most recent
annual meeting held prior to exercise. The Company shall not be required to
provide such information to key employees whose duties in connection with the
Company assure their access to equivalent information.
INTERACTIVE INTELLIGENCE, INC.
By: /s/ Donald E. Brown M.D.
--------------------------------
Donald E. Brown, M.D., President
Adopted by Board - August 14, 1995
Approved by Shareholders - August 14, 1995
Amended by Board - November 11, 1997
Amended by Board - July 12, 1999
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EXHIBIT 10.8(ii)
EMPLOYMENT AGREEMENT
AMENDMENT A
THIS EMPLOYMENT AGREEMENT AMENDMENT A ("Amendment") is made and entered
into, effective as of May 14, 1999, by and between John R. Gibbs ("Employee")
and Interactive Intelligence, Inc. ("Company"), an Indiana corporation.
WHEREAS, the Company and Employee have entered into an Employment
Agreement dated January 2, 1995 and now desire to amend that Employment
Agreement;
NOW, THEREFORE, pursuant to Section 16. Effect and Modification of that
Employment Agreement, the following modifications or amendments are in effect.
SECTION 7. TERMINATION AND SEVERANCE PAYMENTS.
(c) After the word "salary" in two places, add the word "and bonus".
Change "three (3) month's" to "twelve (12) month's" and change "three
(3) months" to "twelve (12) months" in section 7(c). (c) add new
language to section (c) to read, "In the event of change of control,
severance payments as described in this section (c) would also be in
effect if the new controlling party made a reduction in targeted
compensation of greater than 5%, demotes Gibbs in a fashion that would
materially reduce Gibbs' professional stature, assigns Gibbs duties
materially inconsistent with the status of Gibbs' position within the
Company, requires Gibbs to relocate more than 50 miles from Gibbs'
present residence, or makes any requirement for Gibbs to travel on a
regular basis a greater number of days per month or greater number of
consecutive days than is consistent with past practice. Change of
control is defined as the acquisition by any individual, entity or group
of more than forty percent (40%) or more of either (A) the then
outstanding shares of common stock of the Company or (B) the combined
voting power of the then-outstanding voting securities of the Company
entitled to vote generally in the election of directors."
SECTION 9. COVENANT NOT TO COMPETE.
(a) (i) delete this entire phrase, "solicit in any manner, seek to obtain, or
service the business of any customer of the Company, other than for the
Company, in connection with any transactions, business plan, project or
endeavor which would have an adverse affect upon the Company or upon the
Company's relations with such customer."
(iii) for this section, competitor means companies, persons or entities
in which the Company actually competes for the same business or similar
project or proposal.
(iv) after this sentence, "solicit the employment of any employee of the
Company, or encourage any employee to terminate his or her employment with
the Company", add the phrase "if Gibbs is terminated with cause or
voluntarily terminates employment, but may solicit employment of employees
if Gibbs is terminated without cause;"
(b) delete this entire section that defines "customer". Insert the
following sentence, "Gibbs agrees not to make disparaging remarks
regarding the Company."
<PAGE>
EMPLOYMENT AGREEMENT AMENDMENT
JOHN R. GIBBS
PAGE 2
SECTION 11. REMEDIES.
(a) delete the last line of this section 11(a) that reads, "The Company shall
be entitled to recover from Gibbs, reasonable attorneys' fees and
expenses incurred in any action wherein the Company successfully
enforces the provisions of Sections 9 or 10 hereof against the breach or
threatened breach of those provisions by Gibbs."
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
as of the day and year first above written.
/s/ John R. Gibbs
- ------------------------------
John R. Gibbs ("Employee")
Interactive Intelligence, Inc. by: /s/ Donald E. Brown
----------------------------
Donald E. Brown, M.D., President
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" and to
the use of our report dated February 3, 1999 (except the first paragraph of
Note 5, as to which the date is April 16, 1999 and Note 12, as to which the
date is July 12, 1999) in the amended Registration Statement (Form S-1 No.
333-79509) and the related Prospectus of Interactive Intelligence, Inc. dated
July 23, 1999.
Our audits also included the financial statement schedule of Interactive
Intelligence, Inc. listed in Item 16(b). This schedule is the responsibility
of the Company's management. Our responsibility is to express an opinion
based on our audits. In our opinion, the financial statement schedule
referred to above, when considered in relation to the basic financial
statements taken as a whole, presents fairly in all material respects the
information set forth therein.
/s/ ERNST & YOUNG LLP
Indianapolis, Indiana
July 22, 1999
