As filed with the Securities and
Exchange Commission on September 28, 1999
Registration No. 333-____
______________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________________
INTERACTIVE INTELLIGENCE, INC.
(Exact name of registrant as specified in its charter)
INDIANA 35-1933097
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
8909 PURDUE ROAD, SUITE 300 46268
INDIANAPOLIS, INDIANA (Zip Code)
(Address of Principal Executive Offices)
INTERACTIVE INTELLIGENCE, INC.
1995 INCENTIVE STOCK OPTION PLAN, AS AMENDED
INTERACTIVE INTELLIGENCE, INC.
1995 NONSTATUTORY STOCK OPTION INCENTIVE PLAN
INTERACTIVE INTELLIGENCE, INC.
1999 STOCK OPTION AND INCENTIVE PLAN
INTERACTIVE INTELLIGENCE, INC.
OUTSIDE DIRECTORS STOCK OPTION PLAN, AS AMENDED
STOCK OPTION AGREEMENT BETWEEN INTERACTIVE INTELLIGENCE, INC.
AND DONALD E. BROWN, M.D.
STOCK OPTION AGREEMENT BETWEEN INTERACTIVE INTELLIGENCE, INC.
AND JON ANTON, D.SC.
STOCK OPTION AGREEMENT BETWEEN INTERACTIVE INTELLIGENCE, INC.
AND MICHAEL P. CULLINANE
(Full title of the plans)
JOHN R. GIBBS
EXECUTIVE VICE PRESIDENT
8909 PURDUE ROAD
SUITE 300
INDIANAPOLIS, INDIANA 46268
(Name and address of agent for service)
(317) 872-3000
(Telephone number, including area code, of agent for service)
COPY TO:
JAMES A. ASCHLEMAN
BAKER & DANIELS
300 NORTH MERIDIAN STREET, SUITE 2700
INDIANAPOLIS, INDIANA 46204-1782
(317) 237-0300
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Amount maximum maximum
Securities to be offering aggregate Amount of
to be registered price per offering registration
registered (1) share (2) price (2) fee
Common
Stock, $0.01
par value 5,863,704(3) $25.75(4) $150,990,378(4) $41,975.33(4)
(1) Pursuant to Rule 416(c) under the Securities Act of 1933
(the "Securities Act"), this Registration Statement also
registers additional shares of Common Stock as may be
offered or issued to prevent dilution resulting from
stock splits, stock dividends and similar transactions.
(2) It is impracticable to state the maximum offering price.
For example, shares offered pursuant to incentive stock
options granted under the 1999 Stock Option and Incentive
Plan and Outside Directors Stock Option Plan are to be
offered at not less than the fair market value of one
share of Common Stock of Interactive Intelligence, Inc.
on the date the options are granted.
(3) Pursuant to this Registration Statement, of the 5,863,704
shares of Common Stock registered hereby, 1,864,704 of
such shares are registered for issuance under the 1995
Incentive Stock Option Plan, 1,500 of such shares are
registered for issuance under the 1995 Nonstatutory Stock
Option Incentive Plan, 3,750,000 of such shares are
registered for issuance under the 1999 Stock Option and
Incentive Plan, 150,000 of such shares are registered for
issuance under the Outside Directors Stock Option Plan,
67,500 of such shares are registered for issuance under
the Stock Option Agreement between the Registrant and
Donald E. Brown, M.D., 15,000 of such shares are
registered for issuance under the Stock Option Agreement
between the Registrant and Jon Anton, D.Sc., and 15,000
of such shares are registered for issuance under the
Stock Option Agreement between Registrant and Michael P.
Cullinane.
(4) Estimated solely for purposes of calculating the
registration fee and computed in accordance with Rule
457(c) and (h) under the Securities Act using the average
of the high and low sale prices of the Common Stock as
reported by the NASDAQ National Market System on
September 24, 1999, which was $25.75 per share.
<PAGE>
PART I
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
Information required by Part I of Form S-8 to be
contained in the Section 10(a) Prospectus is omitted from this
Registration Statement in accordance with Rule 428 under the
Securities Act and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Company's latest prospectus filed pursuant to
Rule 424(b) under the Securities Act (Registration No. 333-79509)
and the description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-A dated September
17, 1999 filed pursuant to the Securities Exchange Act of 1934
(the "Exchange Act"), including any amendments or reports filed
for the purpose of updating such description, are incorporated
herein by reference. All other reports filed pursuant to Section
13(a) or 15(d) of the Exchange Act since the end of the fiscal
year for which audited financial statements are contained in the
Rule 424(b) prospectus described above are incorporated herein by
reference. All documents filed by the Company pursuant to
Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act after the
date hereof and prior to the termination of the offering of the
securities offered hereby shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing
of such documents with the Commission. The Company will promptly
provide without charge to each person to whom a prospectus is
delivered, a copy of any or all information that has been
incorporated herein by reference (not including exhibits to the
information that is incorporated by reference unless such
exhibits are specifically incorporated by reference into such
information), upon the written or oral request of such person
directed to the Secretary of the Company at its principal
offices, 8909 Purdue Road, Suite 300, Indianapolis, Indiana
46268, (317) 872-3000.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
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.
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.
In addition, the Registrant has a directors' and
officers' liability and company reimbursement policy that insures
against certain liabilities under the Securities Act, subject to
applicable retentions.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The list of Exhibits is incorporated herein by
reference to the Index to Exhibits.
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment
to this registration statement:
(i) To include any prospectus required by
section 10(a)(3) of the Securities Act of
1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the registration statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the registration
statement;
(iii) To include any material information
with respect to the plan of
distribution not previously disclosed
in the registration statement or any
material change to such information in
the registration statement;
Provided, however, that paragraphs (1)(i) and
(1)(ii) do not apply if the information required
to be included in a post-effective amendment by
those paragraphs is contained in periodic
reports filed with or furnished to the
Commission by the registrant pursuant to section
13 or section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to
be a new registration statement relating to the
securities offered therein, and the offering of
such securities at the time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being
registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that,
for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report
pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d)
of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
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 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act,
the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-8 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the City of Indianapolis, State of Indiana, on September 24,
1999.
INTERACTIVE INTELLIGENCE, INC.
By: /S/ DONALD E. BROWN, M.D.
Donald E. Brown, M.D.
Chairman, President and
Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act,
this Registration Statement has been signed by the following
persons in their respective capacities and on the respective
dates indicated opposite their names. Each person whose
signature appears below hereby authorizes each of Donald E.
Brown, M.D. and John R. Gibbs, each with full power of
substitution, to execute in the name and on behalf of such person
any post-effective amendment to this Registration Statement and
to file the same, with exhibits thereto, and other documents in
connection therewith, making such changes in this Registration
Statement as the registrant deems appropriate, and appoints each
of Donald E. Brown, M.D. and John R. Gibbs, each with full
power of substitution, attorney-in-fact to sign any amendment and
any post-effective amendment to this Registration Statement and
to file the same, with exhibits thereto, and other documents in
connection therewith.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/S/ DONALD E. BROWN, M.D. Chairman, President, Chief September 24, 1999
Executive Officer and
Director (Principal
Executive Officer)
Donald E. Brown, M.D.
/S/ JOHN R. GIBBS Executive Vice President September 24, 1999
and Director
John R. Gibbs
/S/ MICHAEL J. TAVLIN Chief Financial Officer September 24, 1999
(Principal Financial
Officer)
Michael J. Tavlin
/S/ KEITH A. MIDKIFF Vice President of Finance September 24, 1999
and Controller (Principal
Accounting Officer)
Keith A. Midkiff
/S/ ROBERT A. COMPTON Director September 24, 1999
Robert A. Compton
/S/ JON ANTON, D.SC. Director September 24, 1999
Jon Anton, D.Sc.
/s/ MICHAEL P. CULLINANE Director September 24, 1999
Michael P. Cullinane
</TABLE>
<PAGE>
INDEX TO EXHIBITS
Exhibit
NO. DESCRIPTION OF EXHIBIT
4.1 Restated Articles of Incorporation of the
Registrant. (The copy of this Exhibit filed
as Exhibit 3.1 to the Company's Registration
Statement on Form S-1 (Registration No.
333-79509) is incorporated herein by
reference.)
4.2 By-Laws of the Registrant, as amended to
date. (The copy of this Exhibit filed as
Exhibit 3.2 to the Company's Registration
Statement on Form S-1 (Registration No.
333-79509) is incorporated herein by
reference.)
4.3 Interactive Intelligence, Inc. 1995 Incentive
Stock Option Plan, as amended. (The copy of
this Exhibit filed as Exhibit 10.1 to the
Company's Registration Statement on Form S-1
(Registration No. 333-79509) is incorporated
herein by reference.)
4.4 Interactive Intelligence, Inc. 1995
Nonstatutory Stock Option Incentive Plan.
(The copy of this Exhibit filed as Exhibit
10.2 to the Company's Registration Statement
on Form S-1 (Registration No. 333-79509) is
incorporated herein by reference.)
4.5 Interactive Intelligence, Inc. 1999 Stock
Option and Incentive Plan. (The copy of this
Exhibit filed as Exhibit 10.3 to the
Company's Registration Statement on Form S-1
(Registration No. 333-79509) is incorporated
herein by reference.)
4.6 Interactive Intelligence, Inc. Outside
Directors Stock Option Plan, as amended.
(The copy of this Exhibit filed as Exhibit
10.4 to the Company's Registration Statement
on Form S-1 (Registration No. 333-79509) is
incorporated herein by reference.)
4.7 Stock Option Agreement between Interactive
Intelligence, Inc. and Donald E. Brown,
M.D., dated September 22, 1998. (The copy of
this Exhibit filed as Exhibit 10.14 to the
Company's Registration Statement on Form S-1
(Registration No. 333-79509) is incorporated
herein by reference.)
4.8 Stock Option Agreement between Interactive
Intelligence, Inc. and Jon Anton, D.Sc.,
dated May 26, 1999. (The copy of this
Exhibit filed as Exhibit 10.21 to the
Company's Registration Statement on Form S-1
(Registration No. 333-79509) is incorporated
herein by reference.)
4.9 Stock Option Agreement between Interactive
Intelligence, Inc. and Michael P. Cullinane,
dated May 26, 1999. (The copy of this
Exhibit filed as Exhibit 10.22 to the
Company's Registration Statement on Form S-1
(Registration No. 333-79509) is incorporated
herein by reference.)
5 Opinion of Baker & Daniels, counsel for
Registrant, as to the legality of the
securities being registered.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Baker & Daniels (included in the
Baker & Daniels Opinion filed as Exhibit 5).
24 Powers of Attorney (included on the Signature
Page of the Registration Statement).
EXHIBIT 5
BAKER & DANIELS
300 NORTH MERIDIAN STREET
SUITE 2700
INDIANAPOLIS, INDIANA 46204
(317) 237-0300
September 27, 1999
Interactive Intelligence, Inc.
8909 Purdue Road
Suite 300
Indianapolis, Indiana 46268
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Interactive Intelligence, Inc.,
an Indiana corporation (the "Company"), in connection with the
preparation and filing with the Securities and Exchange
Commission (the "Commission") of the Company's Registration
Statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933 (the "Act"), registering the offer and
sale of up to 5,863,704 shares of the Company's Common Stock,
$0.01 par value (the "Shares"), pursuant to the Company's 1995
Incentive Stock Option Plan, as amended, 1995 Nonstatutory Stock
Option Incentive Plan, 1999 Stock Option and Incentive Plan,
Outside Directors Stock Option Plan, as amended (the "Plans"),
Stock Option Agreement between the Company and Donald E. Brown,
M.D., dated September 22, 1998, Stock Option Agreement between
the Company and Jon Anton, D.Sc., dated May 26, 1999, and Stock
Option Agreement between the Company and Michael P. Cullinane,
dated May 26, 1999 (the "Stock Option Agreements").
In so acting, we have examined and relied upon the
originals, or copies certified or otherwise identified to our
satisfaction, of such records, documents and other instruments as
in our judgment are necessary or appropriate to enable us to
render the opinion expressed below.
Based on the foregoing, we are of the opinion that the
Shares have been duly authorized and, when the Registration
Statement shall have become effective and the Shares have been
issued in accordance with the Plans or the Stock Option
Agreements, the Shares will be validly issued, fully paid and
nonassessable.
Our opinion expressed above is limited to the federal law of
the United States and the law of the State of Indiana.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement. In giving such consent,
we do not thereby concede that we are within the category of
persons whose consent is required under Section 7 of the Act or
the Rules and Regulations of the Commission thereunder.
Very truly yours,
/s/ BAKER & DANIELS
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference of our report dated
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, with respect to the consolidated financial
statements of Interactive Intelligence, Inc. in its Registration
Statement (Form S-1 No. 333-79509) dated September 22, 1999 and
the related financial statement schedule included therein, filed
with the Securities and Exchange Commission in the Registration
Statement (Form S-8) pertaining to the Company's registration of
common stock pursuant to the Company's 1999 Stock Option and
Incentive Plan, 1995 Nonstatutory Stock Option Incentive Plan,
1995 Incentive Stock Option Plan, as amended, Outside Directors
Stock Option Plan, as amended and Stock Option Agreements between
the Company and Donald E. Brown, M.D., Jon Anton, D.Sc. and
Michael P. Cullinane.
/s/ Ernst & Young LLP
Indianapolis, Indiana
September 24, 1999
