As filed with the Securities and Exchange Commission on January 14, 2002
Registration No. 333-____
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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eGAIN COMMUNICATIONS CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 77-0466366
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
714 E. Evelyn Avenue 94086
Sunnyvale, CA (Zip Code)
(Address of principal
executive offices)
eGain Communications Corporation
2000 Non-Management Stock Option Plan
(Full title of plan)
Ashutosh Roy Copy to:
Chief Executive Officer Stanley F. Pierson, Esq.
eGain Communications Corporation Pillsbury Winthrop LLP
714 E. Evelyn Avenue 2550 Hanover Street
Sunnyvale, CA 94086 Palo Alto, CA 94304
(408) 737-7400 (650) 233-4500
(Name, address and telephone
number of agent for service)
-------------------------------- -----------------------------------
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
maximum maximum
Title of securities Amount to offering aggregate Amount of
to be registered/(1)/ be registered/(2)/ price per share/(3)/ offering price registration fee
-------------------------------------------------- ------------------ -------------------- -------------- ----------------
Common Stock, par value $.001 per share: To be
issued under the eGain Communications Corporation
2000 Non-Management Stock Option Plan 2,000,000 $4.90 $9,800,000 $2,343
==================================================================================================================================
(1) The securities to be registered include options to acquire Common Stock.
(2) Pursuant to Rule 416(a), this registration statement also covers any
additional securities that may be offered or issued in connection with any stock
split, stock dividend, recapitalization or any other similar transaction
effected without the receipt of consideration, which results in an increase in
the number of the Registrant's outstanding shares of Common Stock.
(3) Estimated pursuant to Rule 457(h) under the Securities Act of 1933, as
amended (the "Securities Act") solely for the purposes of calculating the
registration fee. As to shares subject to outstanding but unexercised options
under the 2000 Non-Management Stock Plan, the price is computed on the basis of
the weighted average exercise price. As to the 889,908 remaining shares under
the 2000 Non-Management Stock Plan, the price is based upon the average of the
high and low prices of the Registrant's Common Stock on January 7, 2002, as
reported on the Nasdaq Stock Market.
The Registration Statement shall become effective upon filing in accordance with
Rule 462 under the Securities Act of 1933.
PART I
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Program Annual Information.*
* Information required by Part I to be contained in the Section 10(a) prospectus
is omitted from this Registration Statement in accordance with Rule 428 under
the Securities Act of 1933 (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 following documents filed by the Registrant with the Securities and
Exchange Commission are hereby incorporated by reference in this Registration
Statement:
(a) Registrant's Annual Report on Form 10-K for its fiscal year ended June
30, 2001, filed with the Securities and Exchange Commission on September 28,
2001 and incorporated herein by reference.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") since the end
of the fiscal year referred to in (a) above, covered by the Registration
document.
(c) The description of Registrant's Capital Stock contained in Registrant's
registration statement on Form 8-A, filed September 3, 1999 pursuant to Section
12(g) of the Exchange Act.
In addition, all documents subsequently filed by Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Registrant's certificate of incorporation limits the liability of directors
to the maximum extent permitted by Delaware law. Delaware law provides that
directors of a corporation will not
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be personally liable for monetary damages for breach of their fiduciary duties
as directors, except liability for:
. any breach of their duty of loyalty to the corporation or its
stockholders;
. acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
. unlawful payments of dividends or unlawful stock repurchases or
redemptions as provided in Section 17 of the Delaware General
Corporation Law; or
. any transaction from which the director derived an improper personal
benefit.
This limitation of liability does not apply to liabilities arising under
the federal securities laws and does not affect the availability of equitable
remedies such as injunctive relief or rescission.
Registrant's certificate of incorporation and bylaws provide that it will
indemnify its directors and executive officers and may indemnify other officers
and employees and other agents to the fullest extent permitted by law.
Registrant's bylaws also permit it to secure insurance on behalf of any officer,
director, employee or other agent for any liability arising out of his or her
actions in such capacity, regardless of whether the bylaws would permit
indemnification.
Registrant has entered into agreements to indemnify its directors and
executive officers, in addition to indemnification provided for in Registrant's
certificate of incorporation and bylaws. These indemnification agreements
require the Registrant to indemnify such director or officer (an "Indemnitee")
to the fullest extent permitted by Delaware law, and to indemnify such
Indemnitee against expenses and liabilities actually and reasonably incurred in
connection with the investigation, defense, settlement or appeal of any
proceeding to which such Indemnitee was or is threatened to be made a party.
Pursuant to these indemnification agreements, the Registrant shall also advance
to each Indemnitee expenses and costs associated with any above-referenced
proceeding.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index, which list of exhibits is incorporated herein by
reference.
Item 9. Undertakings.
(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:
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(A) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(B) 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 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(C) 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(A) and (a)(1)(B) of this section do
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 13or
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 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, each filing of the
Registrant's 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.
(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 of 1933 and is, therefore, unenforceable. In the event that a
claim for
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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 of 1933 and will be governed by the final adjudication of such issue.
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SIGNATURES
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 Sunnyvale, State of California, on the 14th day of
January, 2002.
eGAIN COMMUNICATIONS CORPORATION
By /s/ Ashutosh Roy
------------------------------------
Ashutosh Roy
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Ashutosh Roy, Gunjan Sinha, William McGrath and
Milind Kasbekar, and each of them, his or her true and lawful attorneys-in-fact
and agents, each with full power of substitution and resubstitution, for him or
her and in his or her name, place and stead, in any and all capacities, to sign
any and all amendments, to this Registration Statement on Form S-8, and to file
the same, with exhibits thereto 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 and necessary to be done, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that each of said attorneys-in-fact and agents or
their substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Name Title Date
---- ----- ----
/s/ Ashutosh Roy Chief Executive Officer and January 14, 2002
------------------------------ Director (Principal Executive
Ashutosh Roy Officer)
/s/ Gunjan Sinha President and Director January 14, 2002
-----------------------------
Gunjan Sinha
Name Title Date
---- ----- ----
/s/ Harpreet Grewa Chief Financial Officer (Principal January 14, 2002
------------------------------------- Financial Officer)
Harpreet Grewa
/s/ Milind Kasbekar Vice President-Finance and January 14, 2002
------------------------------------- Administration (Principal Accounting
Milind Kasbekar Officer)
/s/ David Brown Director January 14, 2002
-------------------------------------
David Brown
/s/ Mark A. Wolfson Director January 14, 2002
-------------------------------------
Mark A. Wolfson
/s/ Phiroz P. Darukhanavala Director January 14, 2002
-------------------------------------
Phiroz P. Darukhanavala
INDEX TO EXHIBITS
Exhibit
No. Description
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5.1 Opinion of Pillsbury Winthrop LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Pillsbury Winthrop LLP (included in Exhibit 5.1)
24.1 Powers of Attorney (see Signature page).
99.1* eGain Communications Corporation 2000 Non-Management Stock
Option Plan.
______________________
* Incorporated by reference to Exhibit 10.11 to Registrant's Annual Report on
Form 10-K for its fiscal year ended June 30, 2001 filed with the Securities
and Exchange Commission on September 28, 2001.