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As filed with the Securities and Exchange Commission on September 20, 2000
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under The Securities Act of 1933
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eBenX, Inc.
(Exact name of registrant as specified in its charter)
Minnesota 41-1758843
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
605 North Highway 169, Suite LL
Minneapolis, Minnesota 55441-6465
(Address of principal executive offices) (Zip Code)
EBENX, INC./ARBOR ADMINISTRATIVE SERVICES, INC.
2000 EQUITY COMPENSATION PLAN
(Full title of the plan)
Scott P. Halstead Copy to:
Chief Financial Officer Ken Cutler
eBenX, Inc. Dorsey & Whitney LLP
605 North Highway 169, Suite LL Pillsbury Center South
Minneapolis, Minnesota 55441-6465 220 South Sixth Street
(Name and address of agent for service) Minneapolis, Minnesota 55402-1498
(763) 614-2000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered Registered(1) share(2) price(2) fee
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Common Stock
($.01 par value) 645,891 shares $14.22 $6,656,384 $1,757
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(1) Pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests
to be offered or sold pursuant to the employee benefit plan described
herein.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h)(1) and (c). The proposed maximum aggregate
offering price has been calculated as follows: options to purchase
349,197 shares have been issued with an approximate weighted average
price of $6.98; the proposed maximum aggregate offering price of
296,694 shares that are being registered herein is based upon the
average of the high and low prices of the Common Stock as reported on
the Nasdaq consolidated reporting system on September 18, 2000.
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PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents which have been filed with the Securities and
Exchange Commission (the "Commission") by eBenX, Inc. (the "Company") are
incorporated herein by reference:
(a) The Company's latest annual report filed with the Commission pursuant
to Section 13(a) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") on March 28, 2000, together with any amendments
thereto;
(b) The Company's quarterly reports filed with the Commission pursuant to
Section 13(a) of the Exchange Act on May 12, 2000 and August 11, 2000,
respectively, together with any amendments thereto;
(c) The Company's current report filed with the Commission pursuant to
Section 13(a) of the Exchange Act on August 31, 2000, together with
any amendments thereto; and
(d) The description of the Company's Common Stock contained in Item 1 of
the Registration Statement on Form 8-A dated December 3, 1999, and any
amendment or report filed for the purpose of updating such description
filed subsequent to the date of this Registration Statement on Form
S-8 and prior to the termination of the offering described herein.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act subsequent to the date hereof and prior to the
filing of a post-effective amendment which indicates that all securities offered
hereby have been sold or which deregisters all securities remaining unsold shall
be deemed to be incorporated by reference herein and to be a part hereof from
the respective dates of filing of such documents. Any statement contained herein
or in a document all or part of which is incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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Minnesota law and the Company's bylaws provide that the Company will,
subject to limitations, indemnify any person made or threatened to be made a
party to a proceeding by reason of that person's former or present official
capacity with the Company. The Company will indemnify such person against
judgments, penalties, fines, settlements and reasonable expenses, and, subject
to limitations, will pay or reimburse reasonable expenses before the final
disposition of the proceeding.
As permitted by Minnesota law, the Company's articles of incorporation
provide that our directors will not be personally liable to us or our
shareholders for monetary damages for a breach of fiduciary duty as a director,
subject to the following exceptions: (1) any breach of the director's duty of
loyalty to the Company or its shareholders; (2) acts or omissions not in good
faith or that involve intentional misconduct or a knowing violation of law; (3)
liability for illegal distributions under section 302A.559 of the Minnesota
Business Corporation Act or for civil liabilities for state securities law
violations under section 80A.23 of the Minnesota statutes; (4) any transaction
from which the director derived an improper personal benefit; and (5) any act or
omission occurring prior to the effective date of Article VIII of the Company's
articles of incorporation.
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In addition, the employment agreements with the Company's officers that are
described in the prospectus filed with the Registration Statement require, to
the extent permitted by law, the Company to indemnify each of these officers and
to obtain directors' and officers' liability insurance coverage in such amount
as the board of directors determines to be appropriate. The Company maintains a
policy of directors' and officers' liability insurance that insures the
Company's directors and officers against the cost of defense, settlement or
payment of a judgment under certain circumstances.
Item 7. Exemption from Registration Claimed.
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Not applicable.
Item 8. Exhibits.
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4.1 Specimen of Common Stock certificate (incorporated by reference to
Exhibit 4.1 to the Company's Registration Statement on Form S-1 (File
No. 333-87985))
4.2 Fifth Amended and Restated Articles of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-1 (File No. 333-87985))
4.3 Amended and Restated Bylaws of the Company (incorporated by reference
to Exhibit 3.2 to the Company's Registration Statement on Form S-1
(File No. 333-87985))
5.1 Opinion and Consent of Counsel
23.1 Consent of Ernst & Young
23.2 Consent of Counsel (included in Exhibit 5.1)
Item 9. Undertakings.
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(a) 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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities would not exceed that which was registered)
and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with
the Securities and Exchange Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective Registration
Statement; and
(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 (a)(1)(i) and (a)(1)(ii) above will not
apply if the registration statement is on Form S-3, Form S-8 or Form F-3,
and 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.
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(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 that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act 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 other
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
Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Minneapolis, State of Minnesota, on the 20th day of
September, 2000.
eBenX, Inc.
By /s/ John J. Davis
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John J. Davis
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities indicated
on the 20th day of September, 2000.
Signature Title
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/s/ Mark W. Tierney Chairman and Director
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Mark W. Tierney
/s/ John J. Davis President, Chief Executive
------------------------------------ (principal executive officer)
John J. Davis
/s/ Scott P. Halstead Chief Financial Officer and Secretary
------------------------------------ (principal financial officer and
Scott P. Halstead principal accounting officer)
/s/ Michael C. Bingham Senior Vice President,
------------------------------------ Business Development and
Michael C. Bingham Director
/s/ Paul V. Barber Director
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Paul V. Barber
/s/ James P. Bradley Director
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James P. Bradley
/s/ Daniel M. Cain Director
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Daniel M. Cain
/s/ William J. Geary Director
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William J. Geary
/s/ John M. Nehra Director
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John M. Nehra
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EXHIBIT INDEX
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4.1 Specimen of Common Stock certificate (incorporated by reference to
Exhibit 4.1 to the Company's Registration Statement on Form S-1 (File
No. 333-87985)).
4.2 Fifth Amended and Restated Articles of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-1 (File No. 333-87985)).
4.3 Amended and Restated Bylaws of the Company (incorporated by reference
to Exhibit 3.2 to the Company's Registration Statement on Form S-1
(File No. 333-87985)).
5.1 Opinion and Consent of Counsel.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Counsel (included in Exhibit 5.1).
