AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 30, 2001
REGISTRATION NO. 333-
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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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DALEEN TECHNOLOGIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 65-0944514
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
1750 CLINT MOORE ROAD
BOCA RATON, FLORIDA 33487
(Address of Principal Executive Offices, Including Zip Code)
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DALEEN TECHNOLOGIES, INC. 401(K) PROFIT SHARING PLAN
DALEEN TECHNOLOGIES, INC. 2001 BROAD-BASED STOCK INCENTIVE PLAN
DALEEN TECHNOLOGIES, INC. AMENDED AND RESTATED 1999 STOCK INCENTIVE PLAN
(Full title of the Plans)
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COPY TO:
JAMES DALEEN DAVID M. CALHOUN, ESQ.
CHAIRMAN AND CHIEF EXECUTIVE OFFICER MORRIS, MANNING & MARTIN, LLP
DALEEN TECHNOLOGIES, INC. 1600 ATLANTA FINANCIAL CENTER
1750 CLINT MOORE ROAD 3343 PEACHTREE ROAD, N.E.
BOCA RATON, FLORIDA 33487 ATLANTA, GEORGIA 30326
(561) 999-8000 (404) 233-7000
(Name and Address and Telephone Number, Including Area Code,
of Agent for Service.)
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered (1) Per Share (2) Price (2) Registration Fee (2)
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Common Stock, $0.01 par value 2,165,784 shares $0.50 $1,082,892 $259.00
per share
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(1) The shares being registered include (i) 24,520 shares of common stock that
may be purchased under the Daleen Technologies, Inc. 401(k) Profit Sharing
Plan (the "401(k) Plan"), (ii) 141,264 shares of common stock that may be
acquired pursuant to options or awards that may be granted in the future
pursuant to the Daleen Technologies, Inc. Amended and Restated 1999 Stock
Incentive Plan (formerly known as the Daleen Technologies, Inc. Amended and
Restated Stock Incentive Plan) (the "1999 Plan"), and (iii) 2,000,000
shares of common stock that may be acquired pursuant to options or awards
that may be granted in the future pursuant to the Daleen Technologies, Inc.
2001 Broad-Based Stock Incentive Plan (the "2001 Plan"), together with an
indeterminate number of additional shares that may be issued pursuant to
the 401(k) Plan, the 1999 Plan and the 2001 Plan as a result of stock
splits, stock dividends or similar transactions in accordance with Rule 416
under the Securities Act of 1933, as amended.
(2) Estimated pursuant to Rule 457(c) and (h) solely for the purpose of
calculating the registration fee and is based upon the average of the high
and low sales prices of the Registrant's Common Stock as reported on The
Nasdaq National Market on November 28, 2001.
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INCORPORATION BY REFERENCE OF EARLIER REGISTRATION STATEMENTS
The shares registered pursuant to this registration statement include 24,520
shares of common stock that may be purchased under the Daleen Technologies, Inc.
401(k) Profit Sharing Plan (the "401(k) Plan") and 141,264 shares of common
stock that may be acquired pursuant to options or awards that may be granted in
the future pursuant to the Daleen Technologies, Inc. Amended and Restated 1999
Stock Incentive Plan (the "1999 Plan"). Such shares represent additional shares
that may be purchased or acquired under the 401(k) Plan and 1999 Plan,
respectively. The Registrant previously filed registration statements
representing other shares to be issued under the 401(k) Plan and 1999 Plan.
Pursuant to General Instruction E to Form S-8, the contents of the Registration
Statement on Form S-8 (Commission File No. 333-89121) filed by Registrant on
October 15, 1999, and the contents of the Registration Statement on Form S-8
(File No. 333-33698) filed by Registrant on March 31, 2000 are hereby
incorporated by reference into this Registration Statement.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I will be
sent or given to participants in the Daleen Technologies, Inc. 401(k) Profit
Sharing Plan (the "401(k) Plan"), the Daleen Technologies, Inc. Amended and
Restated 1999 Stock Incentive Plan (the "1999 Plan") and the Daleen
Technologies, Inc. 2001 Broad-Based Stock Incentive Plan (the "2001 Plan") as
specified by Rule 428(b)(1) promulgated by the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Securities Act"). In accordance with the instructions of Part I of Form S-8,
these documents will not be filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424 promulgated by the Commission under the Securities Act. These documents
and the documents incorporated by reference pursuant to Item 3 of Part II of
this Registration Statement, taken together, constitute the prospectus as
required by Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Commission are
incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 2000, as amended by Form 10-K/A;
(b) The 401(k) Plan's Annual Report on Form 11-K for the year
ended December 31, 2000;
(c) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2001, as amended by Form 10-Q/A;
(d) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 2001, as amended by Form 10-Q/A;
(e) The Registrant's Current Report on Form 8-K filed with the
Commission on June 15, 2001;
(f) The Registrant's Current Report on Form 8-K filed with the
Commission on October 19, 2001;
(g) The Registrant's Current Report on Form 8-K filed with the
Commission on October 25, 2001; and
(h) The description of the Registrant's common stock, $0.01 par
value per share ("Common Stock"), contained in the
Registrant's Registration Statement on Form 8-A, filed with
the Commission on September 30, 1999 (Registration No.
000-27491).
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14, or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), subsequent to the date of this Registration Statement and prior
to the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all then remaining unsold
securities, shall be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof from the date of filing such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable. The securities to be offered pursuant to this Registration
Statement are registered under Section 12 of the Exchange Act
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Certificate of Incorporation, as amended, provides
that the liability of the Registrant's directors for monetary damages shall be
eliminated to the fullest extent permissible under Delaware General Corporation
Law (the "DGCL") and that the Registrant may indemnify its officers, employees
and agents to the fullest extent permitted under the DGCL.
The DGCL provides that, in general, a corporation may indemnify an
individual who is or was a party to any proceeding (other than action by, or in
the right of, such corporation) by reason of the fact that he or she is or was a
director of the corporation, against liability incurred in connection with such
proceeding, including any appeal thereof, provided certain standards are met,
including that such officer or director acted in good faith and in a manner he
or she reasonably believed to be in, or not opposed to, the best interests of
the corporation, and provided further that, with respect to any criminal action
or proceeding, the officer or director had no reasonable cause to believe his or
her conduct was unlawful. In the case of proceedings by or in the right of the
corporation, the DGCL provides that, in general, a corporation may indemnify an
individual who was or is a party to any such proceeding by reason of the fact
that he or she is or was a director of the corporation against reasonable
expenses incurred in connection with such proceeding, if it is determined that
the director has met the relevant standard of conduct. To the extent that any
directors are successful on the merits or in the defense of any of the
proceedings described above, the DGCL provides that a corporation is required to
indemnify such officers or directors against reasonable expenses incurred in
connection therewith. The DGCL further provides, in general, for the advancement
of reasonable expenses incurred by a director who is a party to a proceeding if
the director furnishes the corporation (1) a written affirmation of his good
faith belief that he or she has met the standard of conduct under the DGCL or
that the proceeding involves conduct for which liability has been eliminated
under the corporation's articles of incorporation; and (2) a written undertaking
to repay any advances if it is ultimately determined that he or she is not
entitled to indemnification. In addition, the DGCL provides for the
indemnification of officers, employees and agents in certain circumstances.
The Registrant's Certificate of Incorporation, as amended, provides
that the Registrant's directors will not be personally liable to the Company or
any stockholder for monetary damages for breach of fiduciary duty as a director,
except if the director:
(a) is liable under Section 174 of the DGCL;
(b) has breached the director's duty of loyalty to the Company or
the Registrant's stockholders;
(c) has acted in a manner involving intentional misconduct or a
knowing violation of law or, in failing to act, has acted in a
manner involving intentional misconduct or a knowing violation
of law; or
(d) has derived an improper personal benefit.
If Delaware law is amended to provide for further limitations on the
personal liability of directors of corporations for breach of duty of care or
other duty as a director, then the personal liability of the directors will be
so further limited to the greatest extent permitted by Delaware law. The
Registrant maintains a directors' and officers' liability insurance policy,
which provides coverage against certain liabilities, including liabilities under
the Securities Act. Additionally, the Registrant has entered into an agreement
with each of its directors pursuant to which the Registrant has agreed to
indemnify each director to the full extent permitted by the DGCL.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
3
ITEM 8. EXHIBITS.
(a) The following exhibits are filed with or incorporated by
reference into this Registration Statement pursuant to Item 601 of
Regulation S-K:
Exhibit No. Description
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4.1* Daleen Technologies, Inc. Amended and Restated 1999
Stock Incentive Plan (incorporated by reference to
Exhibit 10.37 to the Registrant's Annual Report on
Form 10-K filed on April 5, 2001, as amended by Form
10-K/A filed on September 25, 2001).
4.2* Amendment, dated July 18, 2001, to the Daleen
Technologies, Inc. Amended and Restated 1999 Stock
Incentive Plan (incorporated by reference to Exhibit
10.8 to the Registrant's Quarterly Report on Form
10-Q filed on November 14, 2001).
4.3* Daleen Technologies, Inc. 2001 Broad-Based Stock
Incentive Plan(incorporated by reference to Exhibit
10.9 to the Registrant's Quarterly Report on Form
10-Q filed on November 14, 2001).
4.4 Daleen Technologies, Inc. 401(k) Profit Sharing Plan.
5.1 Opinion of Morris, Manning & Martin, LLP, as to the
legality of the securities being registered.
23.1 Consent of KPMG LLP.
23.2 Consent of Goldstein Lewin & Co.
23.3 Consent of Morris, Manning & Martin, LLP (included in
Exhibit 5.1).
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* Previously filed.
(b) The undersigned Registrant undertakes that it has or will submit
the 401(k) Plan and any amendments thereto to the Internal Revenue Service
("IRS") in a timely manner, and has or will make all changes required by the IRS
in order to qualify the 401(k) Plan under the Internal Revenue Code.
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:
(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; 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) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is
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contained in periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference 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 that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from the 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 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 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.
5
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act, the
undersigned 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 Boca Raton, State of Florida, on this the 30th
day of November, 2001.
Daleen Technologies, Inc.
By: /s/ James Daleen
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JAMES DALEEN
Chairman of the Board and Chief Executive Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated:
/s/ James Daleen Chairman of the Board November 30, 2001
--------------------------------- and Chief Executive Officer
JAMES DALEEN (Principal Executive Officer)
/s/ David B. Corey President, Chief Operating Officer November 30, 2001
--------------------------------- and Director
DAVID B. COREY
/s/ Paul G. Cataford Director November 30, 2001
---------------------------------
PAUL G. CATAFORD
/s/ Daniel J. Foreman Director November 30, 2001
---------------------------------
DANIEL J. FOREMAN
/s/ Stephen J. Getsy Director November 30, 2001
---------------------------------
STEPHEN J. GETSY
/s/ Ofer Nemirovsky Director November 30, 2001
---------------------------------
OFER NEMIROVSKY
/s/ William A. Roper, Jr. Director November 30, 2001
---------------------------------
WILLIAM A. ROPER, JR.
/s/ P.J. Hilbert Director November 30, 2001
---------------------------------
P.J. HILBERT
Chief Financial Officer (Principal
/s/ Jeanne Prayther Financial and Accounting Officer) November 30, 2001
---------------------------------
JEANNE PRAYTHER.
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THE PLAN. Pursuant to the requirements of the Securities Act of 1933,
the trustees (or other persons who administer the employee benefit plan) have
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the city of Boca Raton, state
Florida, on November 30, 2001.
Daleen Technologies, Inc.
401(k) Profit Sharing Plan
/s/ Christina Enea
---------------------------------------
Christina Enea, Plan Administrator
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EXHIBIT INDEX
Exhibit Description of Exhibit
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4.1* Daleen Technologies, Inc. Amended and Restated 1999
Stock Incentive Plan (incorporated by reference to
Exhibit 10.37 to the Registrant's Annual Report on
Form 10-K filed on April 5, 2001, as amended by Form
10-K/A filed on September 25, 2001).
4.2* Amendment to the Daleen Technologies, Inc. Amended
and Restated 1999 Stock Incentive Plan (incorporated
by reference to Exhibit 10.8 to the Registrant's
Quarterly Report on Form 10-Q filed on November 14,
2001).
4.3* Daleen Technologies, Inc. 2001 Broad-Based Stock
Incentive Plan (incorporated by reference to Exhibit
10.9 to the Registrant's Quarterly Report on Form
10-Q filed on November 14, 2001).
4.4 Daleen Technologies, Inc. 401(k) Profit Sharing Plan.
5.1 Opinion of Morris, Manning & Martin, LLP, as to the
legality of the securities being registered.
23.1 Consent of KPMG LLP.
23.2 Consent of Goldstein Lewin & Co.
23.3 Consent of Morris, Manning & Martin, LLP (included in
Exhibit 5.1).
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* Previously filed.
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