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As filed with the Securities and Exchange Commission on June 2, 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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EXULT, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 33-0831076
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4 PARK PLAZA, SUITE 1000, IRVINE, CALIFORNIA 92614
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(Address of Principal Executive Offices) (Zip Code)
EXULT, INC.
2000 EQUITY INCENTIVE PLAN
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(Full title of the plan)
BRIAN W. COPPLE
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
EXULT, INC.
4 PARK PLAZA, SUITE 1000
IRVINE, CALIFORNIA 92614
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(Name and address of agent for service)
(949) 250-8002
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================
Amount Proposed Maximum Amount of
Title of Securities to be Aggregate Offering Registration
to be Registered Registered(1) Price(2) Fee(3)
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<S> <C> <C> <C>
Common Stock, 8,000,000 shares $80,000,000 $21,120
par value $0.0001 per share
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</TABLE>
(1) Pursuant to Rule 416(a), this Registration Statement also covers such
additional undetermined number of shares of Common Stock that may be issued
from time to time as a result of the adjustment provisions of the Plan
described herein.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o).
(3) The Registrant previously paid the registration fee for 6,900,000 shares in
connection with Registration No. 333-31754. The Registrant is submitting an
additional fee payment with this filing.
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INTRODUCTION
This registration statement on Form S-8 (the "Registration Statement")
is filed by Exult, Inc. (the "Registrant") relating to 8,000,000 shares of the
Registrant's common stock, par value $0.0001 per share (the "Common Stock"),
issuable to eligible directors, officers, employees, consultants and advisors of
the Registrant and its affiliates under the Exult, Inc. 2000 Equity Incentive
Plan (the "Plan").
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. Plan Information.*
ITEM 2. Registrant Information and Employee Plan Annual Information.*
* Information required by Part I of Form S-8 constituting the requirements of a
Section 10(a) prospectus is omitted from this Registration Statement in
accordance with Rule 428 under the Securities Act of 1933, as amended (the
"Securities Act"), and the Note to Part I of Form S-8. Such information is
not being filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424 under the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference in this
Registration Statement:
(a) The Registrant's registration statement on Form S-1 (Registration
No. 333-31754) filed with the Commission on March 6, 2000, together with any
amendment or report filed pursuant to the Securities Act, amending or updating
such description of Registrant or Registrant's securities as contained therein;
and
(b) Information concerning employee benefits under the Plan, which will
be included in the future, either in the Registrant's proxy statements, annual
reports or appendices to this Registration Statement.
All reports and other documents subsequently filed by the Registrant
after the date of this Registration Statement pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), prior to the filing of a post-effective amendment hereto which indicates
that all securities offered hereby have been sold, or which deregisters all
securities remaining unsold, shall be deemed incorporated by reference into this
Registration Statement and shall be a part hereof from the date of filing such
documents.
For purposes of this Registration Statement, any document or any
statement contained in a document incorporated or deemed to be incorporated
herein by reference shall be deemed to be modified or superseded to the extent
that a subsequently filed document or a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
herein by reference
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modifies or supersedes such document or such statement in such document. Any
statement so modified or superseded shall not be deemed, except as to modified
or superseded, to constitute a part of this Registration Statement.
The Registrant shall provide without charge to each participant in the
Plan, upon written or oral request of such person, a copy of any and all of the
information that has been incorporated by reference in this Registration
Statement. Such requests should be directed to: Chief Financial Officer, Exult,
Inc., 4 Park Plaza, Suite 1000, Irvine, California 92614, (949) 250-8002.
ITEM 4. Description of Securities.
Not Applicable
ITEM 5. Interests of Named Experts and Counsel.
Not Applicable
ITEM 6. Indemnification of Directors and Officers.
Under Section 145 of the Delaware General Corporation Law, the
Registrant may indemnify its directors and officers against liabilities they may
incur in such capacities, including liabilities under the Securities Act. The
Registrant's bylaws require it to indemnify its directors and officers to the
fullest extent permitted by law and require it to advance litigation expenses
upon receipt of an undertaking by the director or officer to repay such advances
if it is ultimately determined that the director or officer is not entitled to
indemnification. The Registrant's bylaws further provide that rights conferred
under such bylaws do not exclude any other right such persons may have or
acquire under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise.
The Registrant's certificate of incorporation provides that, pursuant to
Delaware law, its directors shall not be liable for monetary damages for breach
of the directors' fiduciary duty of care to the Registrant and its stockholders.
This provision in the certificate of incorporation does not eliminate the duty
of care, and in appropriate circumstances equitable remedies such as injunctive
or other forms of non-monetary relief will remain available under Delaware law.
In addition, each director will continue to be subject to liability for breach
of the director's duty of loyalty to the Registrant or its stockholders, for
acts or omissions not in good faith or involving intentional misconduct or
knowing violations of law, for actions leading to improper personal benefit to
the director, and for payment of dividends or approval of stock repurchases or
redemption's that are unlawful under Delaware law. The provision also does not
affect a director's responsibilities under any other law, such as the federal
securities laws or state or federal environmental laws.
In addition, the Registrant has entered into agreements to indemnify its
directors and certain of the Registrant's officers in addition to the
indemnification provided for in its bylaws. These agreements will, among other
things, indemnify the Registrant's directors and some of its officers for
certain expenses (including attorneys fees), judgments, fines and settlement
amounts incurred by such person in any action or proceeding, including any
action by or in Registrant's right, on account of services by that person as a
director or officer of the Registrant or as a director or officer of any of its
subsidiaries, or as a director or officer of any other company or enterprise
that the person provides services to at the Registrant's request.
ITEM 7. Exemption from Registration Claimed.
Not Applicable
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ITEM 8. Exhibits.
4.1 Exult, Inc. 2000 Equity Incentive Plan and form of Notice
of Exercise.
5 Opinion of Brian W. Copple, Esq.
23.1 Consent of Brian W. Copple, Esq. (included in Exhibit 5).
23.2 Consent of Arthur Andersen LLP.
23.3 Consent of Vitale, Caturano and Company, P.C.
24.1 Power of Attorney (see p. 6).
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 (unless the
information required by paragraphs (i) and (ii) below is contained in periodic
reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in 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 this 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 this 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 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective 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.
(2) 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 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, each filing of the
Registrant's annual report
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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 the time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act 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 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 Securities Act and will be governed by the final
adjudication of such issue.
[SIGNATURE PAGES FOLLOW]
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SIGNATURES
Pursuant to the requirements of the Securities Act, Exult, Inc.
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 Irvine, State of California on June 1, 2000.
EXULT, INC.,
a Delaware corporation
By: /s/ JAMES C. MADDEN, V
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James C. Madden, V
Chief Executive Officer, President
and Chairman of the Board
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints James C. Madden, V and Douglas L.
Shurtleff, and each of them, his true and lawful attorneys-in-fact and agents,
each with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement on Form
S-8, and to file such amendments, together with all exhibits and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite or necessary
to be done in connection therewith, as fully to all intents and purposes as he
might or could do in person, hereby ratifies and confirms all that each of said
attorneys-in-fact and agents, and each of them, or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement on Form S-8 has been signed by the following persons, including a
majority of the Board of Directors, in the capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ JAMES C. MADDEN, V Chief Executive Officer, President June 1, 2000
------------------------------------------ and Chairman of the Board
James C. Madden, V (Principal Executive Officer)
/s/ DOUGLAS L. SHURTLEFF Executive Vice President, Treasurer June 1, 2000
------------------------------------------ Chief Financial Officer (Principal
Douglas L. Shurtleff and Financial Officer and Principal
Accounting Officer)
/s/ J. MICHAEL CLINE Director June 1, 2000
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J. Michael Cline
/s/ STEVEN A. DENNING Director June 1, 2000
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Steven A. Denning
/s/ MARK DZIALGA Director June 1, 2000
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Mark Dzialga
/s/ MICHAEL A. MILES Director June 1, 2000
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Michael A. Miles
/s/ THOMAS J. NEFF Director June 1, 2000
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Thomas J. Neff
/s/ JOHN R. OLTMAN Director June 1, 2000
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John R. Oltman
/s/ A. MICHAEL SPENCE Director June 1, 2000
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A. Michael Spence
</TABLE>
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EXHIBITS INDEX
EXHIBIT
NUMBER DESCRIPTION
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4.1 Exult, Inc. 2000 Equity Incentive Plan and form of Notice of
Exercise.
5 Opinion of Brian W. Copple, Esq.
23.1 Consent of Brian W. Copple, Esq. (included in Exhibit 5).
23.2 Consent of Arthur Andersen LLP.
23.3 Consent of Vitale, Caturano and Company, P.C.
24.1 Power of Attorney (see p. 6).
