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As filed with the Securities and Exchange Commission on July 11, 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
divine interVentures, inc.
(Exact Name of Company as Specified in its Charter)
Delaware 36-4301991
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
4225 Naperville Road, Suite 400, Lisle, Illinois 60532
(Address of Principal Executive Offices) (Zip Code)
divine interVentures, inc. 1999 Stock Incentive Plan
divine interVentures, inc. 2000 Employee Stock Purchase Plan
(Full Title of the Plans)
Andrew J. Filipowski
Chairman and Chief Executive Officer
4225 Naperville Road, Suite 400, Lisle, Illinois 60532
(Name and Address of Agent for Service)
(630) 799-7500
(Telephone Number, Including Area Code, of Agent for Service)
Copies to:
D. Mark McMillan, Esq.
divine interVentures, inc.
4225 Naperville Road, Suite 400
Lisle, Illinois 60532
(630) 799-7500
_____________________
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Amount To Be Offering Price Aggregate Offering Amount Of
Title Of Securities To Be Registered Registered (1) Per Share Price Registration Fee
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<S> <C> <C> <C> <C>
Class A Common Stock, $0.001 par 4,680,324 shares (1) (3)(4) $ 45,295,787 (3) $ 11,959
value (1999 Stock Incentive Plan)....... ----- ---------- ------
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Class A Common Stock, $0.001 par
value (2000 Stock Purchase Plan)........ 4,166,666 shares (2) $ 10.00 (3)(5) $ 41,666,660 (3) $ 11,000
----- ---------- ------
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Total 8,846,990 shares -- -- $ 22,959
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</TABLE>
(1) This registration statement also covers an indeterminate number of shares of
divine interVentures, inc. Class A Common Stock that may be issuable by
reason of stock splits, stock dividends, or other adjustment provisions of
the respective plans in accordance with Rule 416 under the Securities Act of
1933.
(2) These amounts reflects a one-for-six reverse stock split of divine
interVentures, inc.'s Class A Common Stock to be effected before the
completion of its initial public offering.
(3) These amounts are used solely for the purpose of calculating the
registration fee pursuant to Rule 457(h) under the Securities Act.
(4) Equals (i) the weighted average exercise price of $8.46 per share for
currently outstanding options to purchase 978,866 shares of Class A Common
Stock granted under this plan and (ii) the high point of the price range for
divine interVentures, inc.'s initial public offering, which is $10 with
respect to 3,701,458 shares of Class A Common Stock which may be granted
under this plan.
(5) This offering price per share is based on the high point of the price range
for divine interVentures, inc.'s initial public offering.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information called for in Part I of Form S-8 is currently included in
the prospectuses for the divine interVentures, inc. 1999 Stock Incentive Plan
and the divine interVentures, inc. 2000 Employee Stock Purchase Plan
(collectively, the "Plans") and is not being filed with, or included in, this
Form S-8 in accordance with the rules and regulations of the Securities and
Exchange Commission (the "SEC").
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by divine interVentures, inc. (the "Company")
with the Securities Exchange Commission ("SEC") are incorporated by reference in
this registration statement:
(a) The Company's Registration Statement on Form S-1 (Reg. No. 333-92851)
filed with the SEC on December 15, 1999, as subsequently amended and
declared effective by the SEC on July 11, 2000.
(b) The description of the Company's Class A Common Stock contained in the
Company's Registration Statement on Form 8-A filed with the SEC on
March 21, 2000 pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and all subsequent amendments and reports
filed for the purpose of updating the description.
In addition, all documents that the Company files pursuant to Sections
13(a), 13(c), 14, or 15(d) of the Exchange Act after the date of this
registration statement and before the filing of a post-effective amendment
indicating that all securities offered pursuant to this registration statement
have been sold or deregistering all the securities then remaining unsold shall
be deemed to be incorporated by reference in this registration statement and to
be part of this registration statement from the date of filing of those
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference in this registration statement shall be deemed to be
modified or superseded for purposes of this registration statement to the extent
that a statement contained in this registration statement or in any subsequently
filed document which also is or is deemed to be incorporated by reference in
this registration statement modifies or supersedes that statement.
The Company will to provide without charge to each person who has received
a copy of any prospectus to which this registration statement relates, upon the
written or oral request of that person, a copy of any or all the documents that
have been or may be incorporated by reference into this registration statement,
other than exhibits to those documents, unless the exhibits are incorporated by
reference in those documents. Written requests for copies should be directed to
the Company's principal executive offices at 4225 Naperville Road, Suite 400,
Lisle, Illinois, 60532, Attention: General Counsel. Telephone requests for
copies should be directed to the Company's General Counsel at (630) 799-7500.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Katten Muchin Zavis, Chicago, Illinois will pass upon the validity of
the Class A Common Stock offered in this registration statement. Arthur W. Hahn,
a partner in Katten Muchin Zavis is one of the Company's directors. Mr. Hahn and
several other partners of Katten Muchin Zavis purchased a total of 2,350,000
shares of the Company's Series C Preferred Stock, which will convert into
391,666 shares of the Company's Class A Common Stock upon completion of the
Company's initial public offering (the "IPO"). In addition, as consideration for
legal services, the Company issued to Katten Muchin Zavis 400,000 shares of the
Company's Series C Preferred Stock, which will convert into 66,666 shares of its
Class A Common Stock in connection with the IPO. Further, Mr. Hahn transferred
to Katten Muchin Zavis 20,833 of the shares (giving effect to the one-for-six
reverse stock split to be effected upon the IPO (the "Split")) of the Company's
Class A Common Stock initially issued to him for $0.006 per share in his
capacity as a director and a 50% beneficial interest in the option to purchase
8,333 shares (giving effect to the Split) of the Company's Class A Common Stock
with an exercise price of $4.50 per share that was
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granted to him, which option was subsequently exercised by Mr. Hahn on his own
behalf and on behalf of Katten Muchin Zavis. As a result, Katten Muchin Zavis
will beneficially own an aggregate of 91,665 shares (giving effect to the Split)
of the Company's Class A Common Stock upon completion of the IPO. Mr. Hahn has
also agreed to transfer to Katten Muchin Zavis 50% of the net proceeds
associated with options granted to him in the future.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of Delaware authorizes the
Company to indemnify its directors and officers under specified circumstances.
The Company's Amended and Restated Certificate of Incorporation provides for the
indemnification of its directors, to the fullest extent authorized by the
Delaware General Corporation Law, and of selected officers, employees, or
agents, to the extent determined by the Company's Board of Directors, except
that the Company will generally not be obligated to indemnify a person in
connection with an action initiated by that person without the Company's prior
written consent. The indemnification under the Company's Amended and Restated
Certificate of Incorporation obligates the Company to pay the expenses of a
director, or an officer who is entitled to indemnification, in advance of the
final disposition of any proceeding for which indemnification may be had,
provided that the payment of these expenses incurred by a director or officer
may be made only upon delivery to the Company of an undertaking by or on behalf
of the director or officer to repay all amounts paid in advance if ultimately
the director or officer is not entitled to indemnification. The Company has
entered into indemnification agreements with each of its directors and executive
officers providing for the indemnification discussed above.
The Company's Amended and Restated Certificate of Incorporation and
Bylaws eliminate, to the fullest extent permitted by Delaware law, liability of
a director to the Company or its stockholders for monetary damages for a breach
of such director's fiduciary duty of care except for liability where a director
(a) breaches his or her duty of loyalty to the Company or its stockholders, (b)
fails to act in good faith or engages in intentional misconduct or knowing
violation of law, (c) authorizes payment of an illegal dividend or stock
repurchase, or (d) obtains an improper personal benefit. While liability for
monetary damages has been eliminated, equitable remedies such as injunctive
relief or rescission remain available. In addition, a director is not relieved
of his responsibilities under any other law, including the federal securities
laws.
The directors and officers of the Company are insured within the limits
and subject to the limitations of the policies, against certain expenses in
connection with the defense of actions, suits, or proceedings and certain
liabilities which might be imposed as a result of such actions, suits, or
proceedings, to which they are parties by reason of being or having been such
directors or officers.
Insofar as indemnification by the Company for liabilities arising under
the Securities Act may be permitted to directors, officers, and controlling
persons of the Company pursuant to the foregoing provisions, the Company 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.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 The Company's Third Amended and Restated Certificate of
Incorporation (incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-1 Registration
Statement No. 333-92851 (the "IPO Registration Statement")).
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4.2 The Company's Amended and Restated By-laws (incorporated by
reference to Exhibit 3.2 to the IPO Registration Statement).
4.3 Specimen stock certificate representing Class A Common Stock
(incorporated by reference to Exhibit 4.1 to the IPO Registration
Statement).
4.4 divine interVentures, inc. 1999 Stock Incentive Plan
(incorporated by reference to Exhibit 10.1 to the IPO
Registration Statement).
4.5 Form of Option Agreement under the divine interVentures, inc.
1999 Stock Incentive Plan (incorporated by reference to Exhibit
10.2 to the IPO Registration Statement).
4.6 divine interVentures, inc. 2000 Employee Stock Purchase Plan.
5 Opinion of Katten Muchin Zavis, counsel to the Company, as to the
legality of the shares of common stock being offered under the
Plans.
23.1 Consent of KPMG LLP.
23.2 Consent of Katten Muchin Zavis (contained in its opinion filed as
Exhibit 5).
24 Power of Attorney (included on the signature page of this
registration statement).
Item 9. Undertakings.
1. The Company hereby undertakes:
(a) 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;
(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 offered 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 Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent 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)(i) and (a)(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 by the Company pursuant
to Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
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(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
2. The Company hereby undertakes that, for the purpose of determining any
liability under the Securities Act, each filing of its annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d) of
the Exchange Act) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to the Company's directors, officers, and
controlling persons pursuant to the foregoing provisions or otherwise, the
Company has been advised that in the opinion of the SEC 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 Company of expenses incurred or paid
by a director, officer, or controlling person of the Company 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 Company 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
Pursuant to the requirements of the Securities Act, the Company 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 Chicago, State of Illinois, on this 5th day of July, 2000.
divine interVentures, inc.
By: /s/ MICHAEL P. CULLINANE
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Michael P. Cullinane
Executive Vice President,
Chief Financial Officer and Treasurer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Andrew J. Filipowski, Michael P. Cullinane, Larry S. Freedman, and D. Mark
McMillan, and each of them severally, acting alone and without the other, his or
her true and lawful attorney-in-fact and agent, with full power of substitution,
to sign on his behalf, individually and in each capacity stated below, all
amendments and post-effective amendments to this registration statement on Form
S-8 and to file the same, with all exhibits thereto and any other documents in
connection therewith, with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully and to
all intents and purposes as each might or could do in person, hereby ratifying
and confirming each act that said attorneys-in-fact and agents may lawfully do
or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities indicated
on July 5, 2000.
Signature Title
--------- -----
Chairman of the Board and Chief Executive Officer
_____________________________ (principal executive officer)
Andrew J. Filipowski
Executive Vice President, Chief Financial Officer,
Treasurer (principal financial and accounting
_____________________________ officer), and Director
Michael P. Cullinane
President and Director
______________________________
Scott Hartkopf
Executive Vice President and Director
______________________________
Paul L. Humenansky
Director
______________________________
Robert Bernard
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Director
______________________________
Michael J. Birck
Director
______________________________
Peter C.B. Bynoe
Director
______________________________
James E. Cowie
Director
______________________________
Andrea Cunningham
Director
______________________________
Thomas Danis
Director
______________________________
Michael H. Forster
Director
______________________________
Arthur P. Frigo
Director
______________________________
Gian Fulgoni
Director
______________________________
George Garrick
Director
______________________________
Craig D. Goldman
Director
______________________________
Joseph D. Gutman
Director
______________________________
Arthur W. Hahn
Director
______________________________
David D. Hiller
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_____________________________ Director
Jeffrey D. Jacobs
_____________________________ Director
Gregory K. Jones
_____________________________ Director
Michael J. Jordan
_____________________________ Director
Steven Neil Kaplan
_____________________________ Director
Richard P. Kiphart
_____________________________ Director
Sanjay Kumar
_____________________________ Director
Ronald D. Lachman
_____________________________ Director
Eric Larson
_____________________________ Director
William Lederer
_____________________________ Director
Michael Leitner
_____________________________ Director
Lawrence F. Levy
_____________________________ Director
Thomas J. Meredith
_____________________________ Director
Teresa L. Pahl
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_____________________________ Director
John Rau
_____________________________ Director
Bruce Rauner
_____________________________ Director
Andre Rice
_____________________________ Director
Mohanbir S. Sawhney
_____________________________ Director
Alex C. Smith
_____________________________ Director
Timothy Stojka
_____________________________ Director
Aleksander Szlam
_____________________________ Director
Mark Tebbe
_____________________________ Director
David M. Tolmie
_____________________________ Director
James C. Tyree
_____________________________ Director
William Wrigley, Jr.
_____________________________ Director
Robert J. Zollars
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INDEX TO EXHIBITS
Exhibits Description
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4.6 divine interVentures, inc. 2000 Employee Stock Purchase Plan.
5 Opinion of Katten Muchin Zavis, counsel to the Company, as to the
legality of the shares of common stock being offered under the
Plans.
23.1 Consent of KPMG LLP.
23.2 Consent of Katten Muchin Zavis (contained in its opinion filed as
Exhibit 5).
24 Power of Attorney (included on the signature page of this
registration statement).
