<PAGE>
As filed with the Securities and Exchange Commission on December 20, 2000
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
________________
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
divine interVentures, inc.
(Exact Name of Registrant as Specified in its Charter)
Delaware 36-4301991
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
3333 Warrenville Road, Suite 800, Lisle, Illinois 60532
(Address Of Principal Executive Offices) (Zip Code)
divine interVentures, inc. 1999 Stock Incentive Plan
(Full Title of the Plan)
Jude M. Sullivan
General Counsel and Secretary
3333 Warrenville Road, Suite 800, 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.
Bell, Boyd & Lloyd LLC
70 W. Madison St.
Chicago, Illinois 60602
(312) 372-1121
________________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================================================
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Each Class of to be Offering Price Aggregate Registration
Securities to be Registered Registered(1) Per Share Offering Price Fee
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<S> <C> <C> <C> <C>
Class A Common Stock, par value $.001 per share 4,371,009 Shares $4.96 (2) $21,680,205 (2) $5,724 (2)
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Class A Common Stock, par value $.001 per share 1,782,000 Shares $1.875 (3) $ 3,341,250 (3) $ 882 (3)
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Total 6,153,009 Shares -- -- $6,606
==============================================================================================================================
</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 plan in accordance with Rule 416 under the Securities Act of 1933.
(2) Based on the weighted average exercise price of $4.96 per share for
currently outstanding options to purchase 4,371,009 shares of Class A
Common Stock granted under the 1999 Stock Incentive Plan.
(3) In accordance with Rule 457(h), calculated on the basis of the average of
the high and low sale prices of the Registrant's common stock as quoted in
the consolidated reporting system of the Nasdaq National Market on December
14, 2000 with respect to 1,782,000 shares of Class A Common Stock which may
be granted under the 1999 Stock Incentive Plan.
<PAGE>
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 prospectus for the divine interVentures, inc. 1999 Stock Incentive Plan (the
"Plan") 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 and 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 set forth
under the caption "Description of Capital Stock" in the Company's
registration statement on Form S-1 (Reg. No. 333-92851), which
description is incorporated by reference in the Company's
registration statement on Form 8-A filed with the SEC on March 21,
2000 (the "Form 8-A") 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 the Form 8-A.
(c) The Company's Current Report on Form 8-K dated July 26, 2000.
(d) The Company's Quarterly Reports on Form 10-Q for the quarters
ended June 30, 2000 and September 30, 2000.
In addition, all documents that the Company files pursuant to Sections
13(a), 13(c), 14, and 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 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 3333 Warrenville Road, Suite 800,
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.
Not applicable.
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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 Third 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 Third 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 Third Amended and Restated Certificate of Incorporation
and Amended and Restated 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 or her 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.
Number Description of Exhibit
------ ----------------------
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")).
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).
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<PAGE>
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).
5 Opinion of Bell, Boyd & Lloyd LLC, counsel to the Company, as to the
legality of the shares of common stock being offered under the Plan.
23.1 Consent of KPMG LLP.
23.2 Consent of Bell, Boyd & Lloyd LLC (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.
(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
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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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<PAGE>
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 20th day of December, 2000.
divine interVentures, inc.
By: /s/ Michael P. Cullinane
-----------------------------------
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, Jude M. Sullivan, 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 or her 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 December 20, 2000.
<TABLE>
<CAPTION>
Signature Title
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<S> <C>
/s/ Andrew J. Filipowski Chairman of the Board and Chief Executive
---------------------------------------- Officer (principal executive officer)
Andrew J. Filipowski
/s/ Michael P. Cullinane Executive Vice President, Chief Financial Officer,
---------------------------------------- Treasurer (principal financial and
Michael P. Cullinane accounting officer), and Director
/s/ Paul L. Humenansky Executive Vice President and Director
----------------------------------------
Paul L. Humenansky
/s/ Tommy Bennett Director
----------------------------------------
Tommy Bennett
</TABLE>
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Signature Title
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/s/ Robert Bernard Director
-----------------------------
Robert Bernard
/s/ Peter C.B. Bynoe Director
-----------------------------
Peter C.B. Bynoe
Director
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John Cooper
/s/ James E. Cowie Director
------------------------------
James E. Cowie
/s/ Thomas Danis Director
------------------------------
Thomas Danis
Director
------------------------------
Michael H. Forster
/s/ Arthur P. Frigo Director
------------------------------
Arthur P. Frigo
Director
------------------------------
Gian Fulgoni
/s/ George Garrick Director
------------------------------
George Garrick
/s/ Arthur W. Hahn Director
------------------------------
Arthur W. Hahn
/s/ David D. Hiller Director
------------------------------
David D. Hiller
/s/ Gregory K. Jones Director
------------------------------
Gregory K. Jones
Director
------------------------------
Michael J. Jordan
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Signature Title
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/s/ Steven Neil Kaplan Director
--------------------------------------
Steven Neil Kaplan
Director
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Richard P. Kiphart
/s/ Ronald D. Lachman Director
--------------------------------------
Ronald D. Lachman
/s/ William Lederer Director
--------------------------------------
William Lederer
Director
-------------------------------------
Lawrence F. Levy
Director
-------------------------------------
Thomas J. Meredith
/s/ Teresa L. Pahl Director
-------------------------------------
Teresa L. Pahl
/s/ John Rau Director
-------------------------------------
John Rau
/s/ Bruce Rauner Director
--------------------------------------
Bruce Rauner
/s/ Andre Rice Director
--------------------------------------
Andre Rice
Director
--------------------------------------
Timothy Stojka
Director
--------------------------------------
Aleksander Szlam
Director
Director
--------------------------------------
Mark Tebbe
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Signature Title
--------- -----
/s/ David M. Tolmie Director
--------------------------------------
David M. Tolmie
/s/ James C. Tyree Director
--------------------------------------
James C. Tyree
/s/ William Wrigley, Jr. Director
--------------------------------------
William Wrigley, Jr.
/s/ Robert J. Zollars Director
--------------------------------------
Robert J. Zollars
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<PAGE>
INDEX TO EXHIBITS
Exhibits Description
-------- -----------------------------------------------------------------
5 Opinion of Bell, Boyd & Lloyd LLC, counsel to the Company, as to
the legality of the shares of common stock being offered under the
Plan.
23.1 Consent of KPMG LLP.
23.2 Consent of Bell, Boyd & Lloyd LLC (contained in its opinion filed
as Exhibit 5).
24 Power of Attorney (included on the signature page of this
registration statement).
