As filed with the Securities and Exchange Commission August 9, 20102013
File No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
INCONTACT, INC.
(Exact name of registrant as specified in its charter)
| Delaware | 87-0528557 | |
(State or Other Jurisdiction of Incorporation or Organization) | (IRS Employer Identification No.) |
7730 S. Union Park Ave., Suite 500, Midvale,Salt Lake City, Utah 84047
(801) 320-3300
(Address and telephone number of registrant’s principal offices)
Gregory S. Ayers, Chief Financial Officer
7730 S. Union Park Ave., Suite 500, Midvale,Salt Lake City, Utah 84047
(801) 320-3200
(Name, address and telephone number of agent for service)
Copies to:
Mark E. Lehman, Esq.
Parsons Behle & Latimer
201 South Main Street, Suite 1800, Salt Lake City, UT 84111
Telephone: (801) 532-1234/ Fax: (801) 536-6111536-6111/ Email: mlehman@parsonsbehle.com
Approximate date of commencement of proposed sale to the public: As soon as practicableFrom time to time on or after the registration statement becomes effective.effective date of this Registration Statement.
If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ¨
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ¨
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer. See definition of “accelerated filer and large accelerated filer” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ¨ | Accelerated filer | x | |||
| Non-accelerated filer | ¨ | Smaller reporting company | ¨ | |||
CALCULATION OF REGISTRATION FEE
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Title of Each Class Of Securities to be Registered | Amount to be Registered (1) | Proposed Maximum Offering Price Per Unit (2) | Proposed Maximum Aggregate Offering Price (2) | Amount of Registration Fee | ||||
Common Stock $0.0001 par value | 376,459 shares | $9.02 | $3,393,778 | $462.91 | ||||
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Title of Each Class Of Securities to be Registered | Amount to be Registered (1) | Proposed Offering Price Per Unit (2) | Proposed Maximum Aggregate Offering Price(2) | Amount of Registration Fee | ||||
| Common Stock $0.0001 par value | 2,167,763 | $2.26 | $4,899,144 | $350 | ||||
| (1) | In accordance with Rule 416(a) under the Securities Act, the registrant is also registering hereunder an indeterminate number of shares that may be issued and resold resulting from stock splits, stock dividends or similar transactions. |
| (2) | Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(c) under the Securities Act of based on the average of the high and low prices of the Registrant’s shares of common stock as reported on the NASDAQ Stock Market on August |
The Registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment whichthat specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
Subject to completion: August 9, 20102013
Prospectus
inContact, Inc.
2,167,763376,459 SHARES OF COMMON STOCK
The prospectus relates to the offer and sale, from time to time, of up to 2,167,763376,459 shares of the common stock of inContact, Inc., by the selling security holders listed on page 87 of this prospectus (who are officers and directors of inConact) or their transferees. We will not receive any proceeds from the sale of shares by selling security holders. We are paying the expenses of registering the shares for the selling security holders.
TheSubject to certain restrictions the selling stockholderssecurity holders may, from time to time, offer and sell or otherwise dispose of any or all of the shares of common stock described in this prospectus on any stock exchange, market or trading facility on which the shares are traded or in private transactions. These sales may be at fixed or negotiated prices, and may be to or through underwriters, broker-dealers or agents, who may receive compensation in the form of discounts, concessions or commissions. The selling stockholderssecurity holders will bear all discounts, concessions, commissions and similar expenses, if any, attributable to the sale of shares. We will bear all other costs, expenses, and fees in connection with the registration of the shares. See the “Plan of Distribution” section in this prospectus for more information about how the selling stockholderssecurity holders may sell or dispose of their shares of common stock.
Our common stock is listed on theThe NASDAQ Stock Market under the symbol “SAAS.” On August 5, 2010,6, 2013, the last reported sale price of our common stock was $2.26$9.13 per share.
Our principal executive offices are located at 7730 SouthS. Union Park Avenue, Suite 500, Midvale,Salt Lake City, UT 84047.
Investing in our securities involves a high degree of risk. See the section entitled “Risk Factors” beginning on page 6.5.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is August , 2010.2013.
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OverviewThe following summary is qualified in its entirety by the more detailed information and the financial statements and notes thereto appearing elsewhere in, or incorporated by reference into, this prospectus. Consequently, this summary does not contain all of the information that you should consider before investing in our common stock. You should carefully read this entire prospectus, including the “Risk Factors” section, and the documents and information incorporated by reference into this prospectus before making an investment decision.
What We Do
inContact, Inc. (“inContact”, “we”, “us”, “our”,inContact,” “we,” “us,” “our,” or the “Company”) began in 1997 as a reseller of telecommunications services and havehas evolved to become a leading provider of end-to-end, cloud computing contact center software solutions. We help contact centers around the world create effective customer experiences through its powerful portfolio of cloud contact center call routing, self-service and agent optimization solutions. The Company’s services and network connectivity. We strivesolutions enable contact centers to deliver the most proven solutions quickly and with ease, helping our customers reduceoperate more efficiently, optimize the cost and improve the quality of every user interaction.customer interaction, and ensure ongoing customer-centric business improvement and growth.
In 2005 weWe began offering cloud computing call center solutions to the call-center market.contact center market in 2005. Our dynamic technology platform provides our customers a pay-as-you-go solution without the costs and complexities of legacypremise-based systems. Our proven cloud delivery model provides compelling total cost of ownership savings over premise-based technology by reducing upfront capital expenditures, eliminating the expense of system management and removes the complexities of deploying and maintaining a premised-based solution,maintenance fees, while providing flexibilityagility that enables businesses to change with business needs.scale their technology as they grow.
We provide software whichoperate under two business segments: Software and Telecom. The Software segment includes automatic call distribution with skills-based routing, interactive voice response with speech recognition, computer telephony integration capabilities, reporting, work force optimization, e-learning, call center agent hiring and customer feedback measurement tools. Taken together, the inContact cloud-based platform creates an integrated solution for call centers, including those with distributed workforces – either at-home or multi-site.
The Evolution of the Contact Center Industry
Most major businesses use contact centersall services related to interact with their customers. Most interactions today are voice, but interactions by e-mail, chat, text and other online media are slowly becoming more common. The total contact center agents is 6.6 million in North America and over 13.5 million worldwide. Contact center technologies have existed for approximately 30 years. During that time, contact centers have purchased call control software and equipment for on-site installation, commonly referred to as “premise-based” equipment. Typically, contact center operations find they have to deal with multiple vendors and engage expensive systems integration expertise, especially when trying to operate multiple locations.
Over the past ten years, significant focus has been placed on managing, improving and optimizing contact centers and employee (referred to as “agent”) performance and quality. A number of management solutions known as Workforce Optimization technologies have been developed to address this demand.
Contact centers are constantly under pressure to balance expense with quality or produce a better user interaction experience for a lower price. Businesses look at their cost per user contact and consider policies, processes, or technologies that optimize user interactions. They look for ways to reduce the number of interactions or consider options such as automating interactions or moving their interactions to less expensive overseas agents. Approximately 75% of a contact center’s expense goes to employing agents. However, deploying Workforce Optimization technologies can significantly reduce call center agent costs, according to analyst reports.
A current industry trend is home-shoring, which utilizes at-home agents. This strategy is more expensive than outsourcing offshore, but less expensive than using facility-based agents and many contact centers believe it improves quality. However, many contact centers are delaying at-home initiatives over concerns of up-front expenses involved to purchase and deploy technologies in support of the project, concerns over security, or concerns over the quality and productivity of the at-home agents. The inContact suite empowers businesses to address these concerns.
Emergence of the Cloud Computing or SaaS Model
Another trend is the adoption of cloud computing technologies for the delivery of “on-demand” software or SaaS that enables subscribers to access a wide variety of application services that are developed specifically for delivery over the Internet on an as-needed basis. Purchasing cloud computing applications offers advantages to businesses over traditional software licensing and delivery models, including the following:
Operational expense rather than a capital expense;
Low up-front expenditure reduces risk and is especially appealing in a tougher economic climate;
The ability to use at-home workers because the software is delivered over the Internet and can be accessed from any location;
Continued access to state-of-the-art technology and avoidance of technology lock-in with no need to install and manage third-party hardware and software in-house; and
Ability to scale as business needs change.
This type of lower cost subscription service is particularly attractive for start-up companies and medium-sized businesses. However, the model also is becoming increasingly appealing to larger organizations as they seek to reduce significant hardware and software expenses, while maintaining or improving call center functionality and capacity.
For companies selling software application services under the cloud computing model, such as inContact, sales generally result in lower initial revenues than traditional software licensing and delivery models. However, because customers generally subscribe to this kind of product for a period of time, future revenues are more predictable than traditional software sales models where license revenue may be recognized in the quarter when signed. As a result of our use of the cloud model, we depend on monthly recurring revenues from our customers, which provides us with a much more predictable and stable revenue stream than if we sold our inContact suite as a premise-based product.
Products and Solutions
inContact Suiteportfolio of Services
Over the past several years, we have transitioned from a telecommunications long-distance reseller and aggregator into an industry leader for call center platforms. We have made a number of strategic acquisitions that we believe have positioned us at the forefront of the rapidly emerging hostedcloud contact center software market. We built our all-in-one contact center solution around the strategic acquisitionsolutions. The Telecom segment includes all voice and data long distance services provided to customers. Software segment revenue was 50% of an automated call distribution solution, which is now the backbone of ourtotal revenue in 2012, 45% in 2011, and 41% in 2010.
The inContact suite of services. Later, via acquisition, we added two components to our inContact application consisting of a workforce management product and a user satisfaction measurement tool, ECHO®.Cloud Portfolio
The inContact suite is a complete multi-tenant, call center solution delivered on a complete time division multiplexing and “voice over internet protocol” telecommunications network. The featuresportfolio consists of inContact help our customers reduce costs and improve the quality of every user interaction. The network allows the solution to be well suited for any business and is especially adept at handling at-home agents. As a suite of on-demand contact-handling applications, our customers are able to choose a single vendor for delivering comprehensive contact center functions without a significant up front expense, maintenance costs, or sacrificing the features demanded to accomplish their goals.
Our inContact solution is delivered as a suite of specialized contact center functionality working together for our customers:following integrated solutions:
| • | inContact |
further by leveraging real-time data for routing decisions to improve the caller experience. inContact ACD is also capable of aggregating multiple |
| • | inContact CTI™: Computer Telephony Integration |
| • | inContact IVR™: inContact Interactive Voice Response |
| • | InContact Dialer: The inContact Dialer combines state-of-the art inbound contact handling with full-featured campaign-based outbound dialing to maximize agent productivity. At the heart of the inContact Dialer is a highly sophisticated simulation-based dialing engine that determines the optimal balance between wait times and abandoned calls. |
| • | inContact Integrations: inContact was designed from the ground up to be open and integrate with various hardware and software solutions already in place at our |
| • | inContact ECHO®: inContact ECHO gathers the opinion of the user and presents the analysis of the feedback directly to supervisors and agents to identify gaps in service and processes. Most companies try to gather user feedback, but many find it difficult to translate user opinion into meaningful data that promotes better service delivery. inContact ECHO is an essential component of the |
| • |
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inContact Workforce Management™: inContact Workforce Management |
| • | inContact |
| • | InContact Screen Recording™: inContact |
| • | inContact Reports 2.0: inContact Reports 2.0 is an interactive reporting tool that provides insight into contact center operations by providing our customers with |
| • | inContact Network Connectivity: inContact runs a national carrier-class telecommunications network providing both |
| • | Professional Services: |
The inContact product suite includes featuresPower of the Cloud Model
The cloud model enables subscribers to access a wide variety of software solutions that were available previously only by purchasingare developed specifically for delivery over the Internet on a pay-as-you-go basis. Purchasing cloud software solutions offers advantages to businesses over traditional software licensing and integrating expensive, premise-based equipment thatdelivery models, including the following:
Operational expense rather than a capital expense;
Overlay existing infrastructure without additional investment;
Low up-front expenditure reduces risk and is difficultespecially appealing in a challenging economic climate;
Remove complexity of day-to-day management;
Ability to use at-home agents or multi-site workforces because the service is delivered over the Internet and can be accessed from any location;
Continued access to state-of-the-art technology and avoidance of technology lock-in with no need to install and manage third-party hardware and maintain and that requires a very substantial installation investment. These systems are also difficultsoftware in-house;
Ability to scale as business needs change; and
Instant built-in scalability, redundancy, security, hosting and manageIT expertise.
This type of lower cost subscription service is particularly attractive for multi-site contact centers or contact centers with home-based agents. Thisstart-up companies and medium-sized businesses. However, the model also is becoming increasingly appealing to larger organizations. While the total cost of ownership benefits of the cloud are important, these large investment is difficult to justify for small and less sophisticated contact centers. Our inContact suite provides a solutionenterprise customers are moving to the problems faced bycloud to improve their business agility. This business agility enables enterprises to react to changing market conditions quickly, change service processes or offerings on the fly, scale up and down as seasonality or volumes indicate, and use their technology as a growth driver for their business.
For companies selling software solutions under the cloud model, such as inContact, sales generally result in lower initial revenues than traditional software licensing and delivery models. However, because customers generally subscribe to this kind of product for multiple years, future revenues are more predictable than traditional software sales models where license revenue may be recognized in the quarter when signed. As a result of our use of the cloud subscription model, we depend on monthly recurring revenues from our customers, which provide us with a much more predictable and stable revenue stream than if we sold our inContact contact centers of all sizes and meets the needs of even the most complicated and advanced contact centers.center software solution as a premise-based product.
Long DistanceTelecom Products and Services
Our telecommunications network is the backbone of the inContact suite of servicesplatform as our customers’ long distance services are managed through our inContact suite and calls are routed across our carrier-grade network. PriorOur ability to 2005, we focused on selling traditionalprovide telecommunications long distance and relatedconnectivity as well as cloud software services create a strong competitive advantage for those customers who are looking for a single source supplier for both these services. Long distance and related services remain the majority of our revenue. If we are successful in our marketing and development strategy, long distance services will diminish in importance; long distance, however, will be a service included in a majority of our inContact suite sales because the long distance facilitates delivery of the inContact software products.
As a domestic and international long distance reseller and aggregator, we contract with a number of third party long distance service providers for the right to resell telecommunication services to our customers. Our primary providers are Qwest,CenturyLink, Verizon, Level 3 and Global Crossing. The variety of traditional telecommunication services we offer enables our customers to: (1)
buy most of the telecommunications services they need from one source, (2)
combine those services into a customized package including our all-in-one, contact center solution, (3)
receive one bill for those services, (4) call
contact us at a single point of contact if service problems or billing issues arise, and (5)
depend on our professional team of employees to manage their network and contact center solution, end-to-end, so our customers can focus on their business operations.
The contracts with our third party long distance service providers are standard and customary in the industry and designate inContact as the point of contact for all customer service calls. These agreements stand for one to three years and are generally renewable at the end of each contract term, when rates are often renegotiated on the basis of prevailing rates in the industry.
We also acquire, from our third party long distance service providers, dedicated long distance service, toll-free 800/888/877/866 services, and dedicated data transmission service and calling cards.service. These services and fees are billed to us as stated in our contracts with our providers and are payable on the same terms as switched long distance service.
We maintain a callcontact center in Midvale,Salt Lake City, Utah for receiving customer service and billing inquiries. Our customer service personnel are available during extended business hours and also provide emergency service 24 hours a day, seven days a week. We place a high priority on customer service since we believe it is a primary factor in acquiring and retaining customers.
Our principal business office is located at 7730 S. Union Park Avenue, Suite 500, Midvale, UT 84047, and our telephone number is (801) 320-3200. Our website address is www.incontact.com. Information contained in our website or any other website does not constitute part of this prospectus.
Before deciding to investYou should carefully consider the risk factors contained in our securities, you should consider carefullymost recent Annual Report on Form 10-K and subsequent reports filed on Form 10-Q, as well as the discussion of risks and uncertainties set forth under the caption “Risk Factors”following risk factors, in any ofevaluating our filings with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 incorporated by reference herein. For more information, see “Where You Can Find More Information.”company. The risks and uncertainties described below are not the only ones we discuss in the documents incorporated by reference in this prospectus are those that we believeface. There may affect our company at the time such statements are made. Additionalbe additional risks and uncertainties that are not presently known to us or that we currently deem immaterial also may materially and adversely affectdo not consider to be material at this time. If the events described in these risks occur, our business, financial condition and results of operations.operations would likely suffer. This prospectus contains forward-looking statements that involve risks and uncertainties. Our actual results may differ significantly from the results discussed in the forward-looking statements. The risk factors incorporated by reference and included herein might cause those differences.
The market price for shares of our common stock may be highly volatile and could be subject to wide fluctuations.
The market price for shares of our common stock may be highly volatile and could be subject to wide fluctuations. Some of the factors that could negatively affect our share price include:
actual or anticipated variations in our quarterly operating results;
changes in our cash flows from operations or earnings estimates;
publication of research reports about us, or the contact center services or cloud-based software services industries, generally;
claims our intellectual property violates the intellectual property rights of others;
significant security breaches of our databases holding customer information;
significant system failures;
changes in applicable laws or regulations, court rulings and enforcement and legal actions;
changes in the market valuations of similar companies;
adverse market reaction to any increased indebtedness we incur in the future;
additions or departures of key management personnel;
actions, including sales of common stock, by our stockholders;
speculation in the press or investment community regarding our business;
general market and economic conditions; and
domestic and international economic, legal and regulatory factors unrelated to our performance.
Future sales of shares of our common stock could adversely affect the market price of our common stock.
Future sales of substantial amounts of our common stock in the public market following this offering, whether by us or our existing stockholders, or the perception that such sales could occur, may adversely affect the market price of our common stock, which could decline significantly. Sales by our existing stockholders might also make it more difficult for us to raise equity capital by selling new common stock at a time and price that we deem appropriate.
Additional issuances of equity securities by us would dilute the ownership of our existing stockholders.
We may issue equity in the future in connection with acquisitions or strategic transactions, to adjust our ratio of debt to equity, to fund expansion of our operations or for other purposes. We may issue shares of our common stock at prices or for consideration that is greater or less than the price at which the shares of common stock are offered and sold under this prospectus. To the extent we issue additional equity securities, your percentage ownership of our common stock would be reduced.
We are able to issue shares of preferred stock with greater rights than our common stock.
Our certificate of incorporation authorizes our board of directors to issue one or more series of preferred stock and set the terms of the preferred stock without seeking any further approval from our stockholders. Any preferred stock that is issued may rank ahead of our common stock in terms of dividends, liquidation rights or voting rights. If we issue preferred stock, it may adversely affect the market price of our common stock.
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus information incorporatedcontains or incorporates by reference into this prospectus, and prospectus supplements containcertain statements that are, or may be deemed to be, “forward-looking statements” within the meaning of the U.S. federal securities laws. We have based these forward-looking statements that involve substantial riskslargely on our current expectations and uncertainties. Forward-lookingprojections about future events and financial trends affecting the financial condition of our business. These forward-looking statements are those that predict or describe future events or trends and that do not relate solelysubject to historical matters. Further, when we use the words “may,” “expect,” “anticipate,” “plan,” “believe,” “seek,” “estimate,” “internal,” and similar words, we intend to identify statements and expressions that may be forward-looking statements. We believe it is important to communicate certaina number of our expectations to our investors. Forward-looking statements are not guarantees of future performance. They involve risks, uncertainties and assumptions, that could cause our future results to differ materially from those expressedincluding, among other things, the risk factors discussed in any forward-looking statements. Risks, uncertainties and other factors that might cause such differences include the risks identified abovethis prospectus under the caption “Risk Factors” beginning on page 6 and in theour most recent annual report on Form 10-K and subsequent quarterly reports we file with the Securitieson Form 10-Q and Exchange Commission or in other documents that we publicly disseminate from time to time. Many factors, most of which are beyond our control.
The words “believe,” “may,” “estimate,” “continue,” “anticipate,” “intend,” “plan,” “expect” and similar expressions are intended to identify forward-looking statements. All statements other than statements of current or historical fact contained in this prospectus are forward looking-statements. Although we believe that the forward-looking statements contained in this prospectus are based upon reasonable assumptions, the forward-looking events and circumstances discussed in this prospectus may not occur and actual results could differ materially from those anticipated or implied in the forward-looking statements.
Important factors that may affect our expectations and estimates include:
The highly competitive and evolving nature of the industry in which we compete;
Rapid technological changes;
The high incidence of intellectual property infringement claims involving technology companies.
Failure by us to implement our strategies;
Our ability to control or predict. You are accordingly cautioned notkeep pace with changing customer needs;
Financial difficulties experienced by any of our top customers;
Our debt and debt service requirements that restrict our operating and financial flexibility, and impose interest and financing costs;
Our ability to place undue reliance on suchattract and retain key personnel;
General economic and market conditions; and
Possible terrorist attacks and ongoing military action throughout the world.
Our forward-looking statements. We havestatements speak only as of the date of this prospectus. Unless otherwise required by law, we undertake no obligation to publicly update or intent to update publiclyrevise any forward-looking statements, whether in response toas a result of new information, future events or otherwise, except as required by applicable law.otherwise.
We will not receive any of the proceeds from the sale of the shares offered by the Selling Security Holders.
DESCRIPTION OF COMMON STOCK AND PREFERRED STOCK
inContact’s charter authorizes it to issue up to: (i) 100,000,000 shares of common stock, $0.0001 par value per share; and (ii) 15,000,000 shares of preferred stock, $0.0001 par value per share. As of the date of this prospectus, there are approximately 35,061,338 shares of common stock outstanding and no shares of preferred stock outstanding.
Common stock
Holders of the common stock are entitled to one vote per share on all matters submitted to the stockholders for a vote. There are no cumulative voting rights in the election of directors. After satisfaction of the dividend rights of holders of preferred stock, holders of common stock are entitled to any dividend declared by the board of directors out of funds legally available for this purpose. After the payment of liquidation preferences to holders of any outstanding preferred stock, holders of our common stock are entitled to receive, on a pro rata basis, all of our remaining assets available for distribution to the stockholders in the event of our liquidation, dissolution, or winding up. Holders of our common stock do not have any preemptive right to subscribe or purchase additional shares of any class of our capital stock. The rights, preferences and privileges of holders of our common stock are subject to, and may be adversely affected by, the rights of the holders of shares of any series of preferred stock that we may designate and issue in the future.
Preferred stock
The board of directors, without further action by the holders of the common stock, is authorized to classify any shares of our authorized but unissued preferred stock as preferred stock in one or more series. With respect to each series, the board of directors may determine:
The number of shares which shall constitute such series;
The rate of dividend, if any, payable on shares of such series;
Whether the shares of such series shall be cumulative, non-cumulative or partially cumulative as to dividends, and the dates from which any cumulative dividends are to accumulate;
Whether the shares of such series may be redeemed, and, if so, the price or prices at which and the terms and conditions on which shares of such series may be redeemed;
The amount payable upon shares of such series in the event of the voluntary or involuntary dissolution, liquidation or winding up of the affairs of inContact;
The sinking fund provisions, if any, for the redemption of shares of such series;
The voting rights, if any, of the shares of such series;
The terms and conditions, if any, on which shares of such series may be converted into shares of capital stock of inContact of any other class or series;
Whether the shares of such series are to be preferred over shares of capital stock of inContact of any other class or series as to dividends, or upon the voluntary or involuntary dissolution, liquidation, or winding up of the affairs of inContact, or otherwise; and
Any other characteristics, preferences, limitations, rights, privileges, immunities or terms not inconsistent with the provisions of the Charter.
The availability of preferred stock, while providing desirable flexibility in connection with possible acquisitions and other corporate purposes, could have the effect of discouraging takeover proposals, and the issuance of preferred stock could have the effect of delaying or preventing a change in control of inContact not approved by the board of directors.
Procedures that may hinder takeover
Provisions in our bylaws and Delaware law may have the effect of hindering or delaying a takeover that management opposes. We believe these provisions to be beneficial to inContact and its stockholders because they promote stability in management and continuity in the business objectives we seek to achieve. These provisions could, however, discourage attempts to acquire our company without the support of management, even if a proposed acquisition is favored by stockholders, and could result in stockholders losing an opportunity to receive payment of a premium over market price for our common stock they hold.
Under our bylaws special meetings of the stockholders may be called only by the chairman of the board, president, or a majority of the board of directors. Consequently, stockholders cannot call a special meeting to consider changes in our board of directors or provisions of our bylaws to facilitate a change in control or acquisition.
We are subject to the provisions of Section 203 of the Delaware General Corporation Law. Section 203 provides, with certain exceptions, that a Delaware corporation may not engage in any of a broad range of business combinations with a person or an affiliate, or associate of such person, who is an “interested stockholder” for a period of three years from the date that such person becomes an interested stockholder unless: (i) the transaction resulting in a person becoming an interested stockholder, or the business combination, is approved by the board of directors of the corporation before the person becomes an interested stockholder; (ii) the interested stockholder acquired 85 percent or more of the outstanding voting stock of the corporation in the same transaction that makes such person an interested stockholder (excluding shares owned by persons who are both officers and directors of the corporation, and shares held by certain employee stock ownership plans); or (iii) on or after the date the person becomes an interested stockholder, the business combination is approved at an annual or special meeting by the corporation’s board of directors and by the holders of at least 66 2/3 percent of the corporation’s outstanding voting stock, excluding shares owned by the interested stockholder. Under Section 203, an “interested stockholder” is defined as any person who is: (i) the owner of 15 percent or more of the outstanding voting stock of the corporation; or (ii) an affiliate or associate of the corporation and who was the owner of 15 percent or more of the outstanding voting stock of the corporation at any time within the three-year period immediately prior to the date on which it is sought to be determined whether such person is an interested stockholder. Section 203 could delay or prevent a change in control or acquisition.
Transfer agent
The transfer agent for the common stock is Interwest Transfer Co., Inc., Salt Lake City, Utah.
We are registeringBeneficial Ownership
The registration statement, of which this prospectus forms a part, relates to the registration and possible resale of up to 376,459 shares of our common stock by Transcend Products, LLC, a Utah limited liability company (“Transcend Products”).
The following table sets forth information with respect to the beneficial ownership of our common stock held as of August 9, 2013, by Transcend Products, the number of shares being offered hereby and information with respect to shares to be beneficially owned by Transcend Products assuming all the shares registered hereunder are sold. The percentages in the following table reflect the shares beneficially owned by Transcend Products as a percentage of the total number of shares of our common stock outstanding as of July 22, 2013.
Selling Security Holder Transcend Products, LLC (2) Number of
Shares
Owned Number of
Shares
Offered Number of
Shares Owned
After (1) Percentage
Owned
After (1) 376,459 376,459 -0- -0-
| (1) | Assumes that Transcend Products disposes of all the shares of common stock covered by this prospectus and does not acquire beneficial ownership of any additional shares. The registration of these shares does not necessarily mean Transcend Products will sell all or any portion of the shares covered by this prospectus. |
| (2) | Rix Ryskamp and Paul Reay are the managers of Transcend Products entitled to exercise voting and investment control over the shares held by Transcend Products and, therefore, may be deemed to hold a beneficial interest in such shares. |
On December 21, 2012, we entered into a development agreement with Transcend Products. The Software Development, OEM Licensing and Reseller Agreement (the “Development Agreement”) provides for the integration of Transcend Products’ proprietary software system for an outbound dialing platform for customer support services and call centers with our suite of inContact services, and an ongoing license to use and distribute the resulting integrated system. In consideration for the services and license, we agreed to pay Transcend Products a maximum development fee of $300,000, which was in fact paid, and an ongoing royalty based on the number of “seats” or stations for which our customers license the integrated system. In connection with the Development Agreement we negotiated for the right to acquire certain assets of Transcend Products, which was memorialized in the Exclusive Option and Purchase Agreement dated December 31, 2012 (the “Purchase Agreement”).
The Purchase Agreement granted to us an option to purchase the patent rights and other intellectual property related to Transcend Products’ proprietary software system for an outbound dialing platform, the rights to the integrated product developed under the Development Agreement, certain equipment and customer accounts, and other intangible assets of Transcend Products. The option was exercisable at any time on or before June 30, 2013, and we did exercise the option in June 2013, and closed the acquisition of the assets on July 2, 2013.
The purchase price for the acquired assets was $6,000,000 plus an additional contingent earnout payment of $1,000,000, which is payable if, during three consecutive calendar months beginning in the two-year period beginning August 1, 2013, we have active ports for our customers (including indirect customers acquired through our distributors) for access and use of the outbound dialing platform service under customer/ reseller contracts that result in billings for such service in each such calendar month of at least $250,000.
The purchase price was paid by applying as a credit the development fee of $300,000 paid under the Development Agreement, tendering cash to Transcend Products or at its direction in the amount of $2,700,000, and issuing to Transcend Products 376,459 shares of our common stock, which are all of the shares Transcend Products proposes to offer under this prospectus. The number of shares issued was determined by dividing $3,000,000 by $7.969, which is an average of closing sale prices per share reported on the NASDAQ Capital Market during a measurement period prior to the closing. The contingent earnout payment may be made in cash or shares of common stock, at our election.
General
We are registering 376,459 shares of our common stock for possible sale by the selling security holders. Unless the context otherwise requires, as used in this prospectus, on behalf of“selling security holders” includes the selling security holders named in the table below in accordance with our obligations under the registration rights agreement. Selling security holders, including their permittedabove and donees, pledgees, transferees pledgees or donees or their successors (all of whom may beother successors-in-interest selling stockholders), mayshares received from time to time offer and sell pursuant to this prospectus any or all of the shares. When we refer to “selling security holders” in this prospectus, we mean those persons listed in the table below, as well as their permitted transferees, pledgees or donees or their successors.
The following table sets forth the name of each of the selling security holders as of the date of this prospectus, the number of shares of common stock that each selling security holder owns beneficially that may be offered for sale from time to time by this prospectus, and the percent of our outstanding common stock each selling security holder will continue to hold assuming the sale of all the common stock offered. We may amenda gift, pledge, partnership distribution or supplement this prospectus from time to time to update the disclosure set forth herein.
Selling Security Holder (1) | Number of Shares Owned (2) | Number of Shares Offered | Number of Shares Owned After (3) | Percentage Owned After (2) | ||||
Theodore Stern | 1,704,341 | 1,562,713 | 141,628 | 0.4 | ||||
Steve Barnett | 593,254 | 378,300 | 214,954 | 0.6 | ||||
Paul F. Koeppe | 413,204 | 211,750 | 201,454 | 0.6 | ||||
Blake O. Fisher, Jr. | 198,954 | 15,000 | 183,954 | 0.5 | ||||
Mark J. Emkjer | 58,295 | -0- | 58,295 | 0.2 |
We are registering the shares of common stock to permit the resale of these shares of common stock by the selling security holders from time to timeother transfer after the date of this prospectus. We will not receive any of
Subject to the proceeds from the sale byrestrictions described below, the selling security holders of the shares of common stock.
The selling security holdersmay offer and any broker-dealers that act in connection with the sale of shares may be deemed to be “underwriters” within the meaning of Section 2(a)(11) of the Securities Act, and any commissions received by such broker-dealers and any profit on the resale of shares sold by them while acting as principals may be deemed to be underwriting discounts or commissions under the Securities Act.
The selling security holders may sell all or a portion of the shares of common stock beneficially ownedcovered by them and offered herebythis prospectus from time to time, directly or through one or more underwriters, broker-dealers or agents. If the shares of common stock are sold through underwriters or broker-dealers, the selling security holders will be responsible for underwriting discounts or commissions or agent’s commissions. The shares of common stock may be sold in one or more transactions at fixed prices, at prevailing market prices at the timeor any combination of the sale, at varying prices determined at the time of sale, or at negotiated prices. These sales may be effected in transactions, which may involve crosses or block transactions,following transactions:
on The NASDAQ Stock Market, in the over-the-counter market or on any other national securities exchange or quotation service on which the securities may beour shares are listed or quoted at the time of sale;traded;
in privately negotiated transactions;
in the over-the-counter market;underwritten transactions;
in transactions otherwise than on these exchanges or systems or in the over-the-counter market;
through the writing of options, whether such options are listed on an options exchange or otherwise;
ordinary brokerage transactions and transactionsa block trade in which the broker-dealer solicits purchasers;
block trades in which thea broker-dealer will attempt to sell the offered shares as agent but may position and resell a portion of the block as principal to facilitate the transaction;
through purchases by a broker-dealer as principal and resale by the broker-dealer for its account;account pursuant to this prospectus;
an exchange distribution in accordance withordinary brokerage transactions and transactions in which the rules of the applicable exchange;broker solicits purchasers; and
privatelythrough the writing of options (including put or call options), whether the options are listed on an options exchange or otherwise.
The selling security holders may sell the shares at prices then prevailing or related to the then current market price or at negotiated transactions;prices. The offering price of the shares from time to time will be determined by the selling security holders and, at the time of the determination, may be higher or lower than the market price of our common stock on The NASDAQ Stock Market or any other exchange or market.
salesThe shares may be sold directly or through broker-dealers acting as principal or agent, or pursuant to Rule 144;
a distribution by one or more underwriters on a firm commitment or best-efforts basis. The selling security holders may also enter into hedging transactions with broker-dealers. In connection with such transactions, broker-dealers of other financial institutions may engage in short sales;
broker-dealers may agreesales of our common stock in the course of hedging the positions they assume with the selling security holders to sell a specified number of such shares at a stipulated price per share;
a combination of any such methods of sale; and
any other method permitted pursuant to applicable law.
If theholders. The selling security holders effect suchmay also enter into options or other transactions by selling shares of common stock to or through underwriters,with broker-dealers or agents,other financial institutions that require the delivery to such broker-dealer or other financial institution of shares offered by this prospectus, which shares such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction). In connection with an underwritten offering, underwriters broker-dealers or agents may receive commissionscompensation in the form of discounts, concessions or commissions from the selling security holders or commissions from purchasers of the offered shares of common stock for whom they may act as agent or to whom theyagents. In addition, underwriters may sell as principal (whichthe shares to or through dealers, and those dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for whom they may act as to particularagents. The selling security holders and any underwriters, broker-dealersdealers or agents may beparticipating in excess of those customary in the types of transactions involved). In connection with salesa distribution of the shares may be deemed to be “underwriters” within the meaning of common stock or otherwise,the Securities Act, and any profit on the sale of the shares by the selling security holders and any commissions received by broker-dealers may enter into hedging transactions with broker-dealers, which may in turn engage in short sales ofbe deemed to be underwriting commissions under the shares of common stock in the course of hedging in positions they assume. The selling security holders may also sell shares of common stock short and deliver shares of common stock covered by this prospectus to close out short positions and to return borrowed shares in connection with such short sales. The selling security holders may also loan or pledge shares of common stock to broker-dealers that in turn may sell such shares.Securities Act.
The selling security holders may pledgeagree to indemnify an underwriter, broker-dealer or grant a security interest in some or allagent against certain liabilities related to the selling of the shares of common stock, owned by them and, if they default inincluding liabilities arising under the performance of their secured obligations,Securities Act. We will bear the pledgees or secured parties may offer and sell the shares of common stock from time to time pursuant to this prospectus or any amendment to this prospectus under Rule 424(b)(3) or other applicable provisionexpenses of the Securities Act, amending, if necessary,offering of shares, except that the list of selling security holders to include the pledgee, transfereewill pay any applicable underwriting fees, discounts or other successors in interest as selling security holders under this prospectus. commissions and certain transfer taxes.
The selling security holders also may transfer and donatehave advised us that they have not entered into any agreements, understandings or arrangements with any underwriters or broker-dealers regarding the sharessale of common stock in other circumstances in which case the transferees, donees, pledgees or other successors in interest will beits shares. Upon our notification by the selling beneficial ownerssecurity holders that any material arrangement has been entered into with an underwriter or broker-dealer for purposesthe sale of shares through a block trade, special offering, exchange distribution, secondary distribution or a purchase by an underwriter or broker-dealer, we will file a supplement to this prospectus.prospectus, if required, pursuant to Rule 424(b) under the Securities Act, disclosing certain material information, including:
At
the time a particular offeringname of the shares of common stock is made, a prospectus supplement, if required, will be distributed which will set forth selling security holder;
the aggregate amountnumber of shares of common stock being offered and offered;
the terms of the offering, including offering;
the name or names of anythe participating underwriters, broker-dealers or agents, agents;
any discounts, commissions andor other terms constituting compensation from the selling security holderspaid to underwriters or broker-dealers and any discounts, commissions or concessions allowed or reallowed or paid by any underwriters to broker-dealers.dealers;
Under
the securities lawspublic offering price; and
other material terms of some states, the shares of common stock may be sold in such states only through registered or licensed brokers or dealers. offering.
In addition, in some statesupon being notified by the selling security holders that a donee, pledgee, transferee, other successor-in-interest intends to sell more than 500 shares, of common stock may not be sold unless such shares have been registered or qualified for sale in such state or an exemption from registration or qualification is available and is complied with.
There can be no assurance that any selling stockholderwe will, sell any or all of the shares of common stock registered pursuant to the registration statement, of whichextent required, promptly file a supplement to this prospectus formsto name specifically such person as a part.selling security holder.
The selling security holders and any other person participating in such distribution will beare subject to the applicable provisions of the Securities Exchange Act of 1934, as amended, or the Exchange Act, and the rules and regulations thereunder, including, without limitation, to the extent applicable, Regulation M ofunder the Exchange Act, whichincluding Regulation M. This regulation may limit the timing of purchases and sales of any of the shares of common stock offered in this prospectus by the selling security holders. The anti-manipulation rules under the Exchange Act may apply to sales of shares in the market and to the activities of the selling security holders and any other participating person. their affiliates.
To the extent applicable Regulation Mrequired, this prospectus may also restrict the abilitybe amended and/or supplemented from time to time to describe a specific plan of any person engaged in the distributiondistribution. Instead of selling the shares of common stock to engage in market-making activities with respect tounder this prospectus, the shares of common stock. All of the foregoingselling security holders may affect the marketability ofsell the shares of common stock and the ability of any person or entity to engage in market-making activities with respect to the shares of common stock.
We will pay all expenses of the registration of the shares of common stock pursuant to the registration rights agreement, including, without limitation, Securities and Exchange Commission filing fees and expenses of compliance with state securities or “blue sky” laws; provided, however, that a selling stockholder will pay all underwriting discounts and selling commissions, if any. We will indemnify the selling security holders against certain liabilities, including some liabilitiesprovisions of Rule 144 under the Securities Act, in accordance withif available, or pursuant to other available exemptions from the registration rights agreement, or the selling security holders will be entitled to contribution. We may be indemnified by the selling security holders against certain civil liabilities, including liabilities underrequirements of the Securities Act, that may arise from any written information furnished to us by the selling stockholder specifically for use in this prospectus, in accordance with the related registration rights agreement, or we may be entitled to contribution.
Once sold under the registration statement, of which this prospectus forms a part, the shares of common stock will be freely tradable under the Securities Act in the hands of persons other than our affiliates.Act.
Certain legal matters relating to the validity of the securities offered by this prospectus will be passed upon for inContact by Parsons Behle & Latimer, Salt Lake City, Utah.
The consolidated financial statements, and the related financial statement schedule,schedules, incorporated in this Prospectus by reference from inContact’s Annual Report on Form 10-K, for the year ended December 31, 2009, and the effectiveness of inContact’s internal control over financial reporting have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their reports, which are incorporated herein by reference (which reports (1) express an unqualified opinion on the consolidated financial statements and financial statement schedule and include an explanatory paragraph relating to the adoption of Accounting Standards Codification (“ASC”) 820-10Fair Value Measurements and Disclosures, and (2) express an unqualified opinion on the effectiveness of internal control over financial reporting).reference. Such consolidated financial statements and financial statement scheduleschedules have been so incorporated in reliance upon the reports of such firm given upon their authority as experts in accounting and auditing.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The Securities and Exchange Commission, or the SEC allows us to “incorporate by reference” the information we file with it, which means that we can disclose important information to you by referring you to those documents instead of having to repeatanother document that we have filed separately with the information in this prospectus. TheSEC. You should read the information incorporated by reference because it is an important part of this prospectus. Any information incorporated by reference into this prospectus is considered to be part of this prospectus and later information thatfrom the date we file with the SEC will automatically update and supersede this information.that document. We incorporate by reference the following information or documents listed below:that we have filed with the SEC (Commission File No. 001-33762) which shall not include, in each case, documents, or information deemed to have been furnished and not filed in accordance with SEC rules:
Annual Report on Form 10-K for the fiscal year ended December 31, 2009;2012;
Quarterly Report on Form 10-Q for the period ended March 31, 2010;2013;
Quarterly Report on Form 10-Q for the period ended June 30, 2010;2013;
Current report on Form 8-K filed with the SEC February 26, 2010;14, 2013;
Current report on Form 8-K filed with the SEC; March 21, 2013
Current report on Form 8-K filed with the SEC March 16, 2010;May 15, 2013;
Current report on Form 8-K filed with the SEC April 1, 2010;May 22, 2013;
Current report on Form 8-K filed with the SEC May 24, 2013;
Current report on Form 8-K filed with the SEC June 21, 201014, 2013;
Definitive Proxy StatementCurrent report on Form 14A8-K filed with the SEC April 28, 2010;June 27, 2013; and
The description of our common stock contained in our registration statement on Form 8-A (File No. 001-33762) filed with the SEC on October 24, 2007, andincluding any amendmentsamendment or reportsreport filed for the purpose of updating such description; anddescription.
Any future filings made with the SEC under Sections 13(a), 13(c), 14, or 15(d)information in any of the Securities Exchange Act of 1934, as amended, between the date of this prospectus and the termination of the offering and also between the date of the initial registration statement and prior to effectiveness of the registration statement.
Any statement in a document incorporated or deemed toforegoing documents will automatically be incorporated by reference in this prospectus is deemed to be modified or superseded to the extent that a statement containedinformation in this prospectus or in a later filed document or other report that is incorporated or deemed to be incorporated herein by reference modifies or replaces such information.
We also incorporate by reference any other document we subsequently filefuture filings (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form that are related to such items) made with the SEC modifiespursuant to Sections 13(a), 13(c), 14 or supersedes15(d) of the Exchange Act, until we file a post-effective amendment that statement. If any statement is modified or superseded, it does not constitute a partindicates the termination of the offering of the securities made by this prospectus,prospectus. Information in such future filings updates and supplements the information provided in this prospectus. These documents include proxy statements and periodic reports, such as Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, and, to the extent they are considered filed and except as modified or superseded. Informationdescribed above, Current Reports on Form 8-K. Any statements in any such future filings will automatically be deemed to modify and supersede any information in any document we previously filed with the SEC that is “furnished to” the SEC in any reportincorporated or filingdeemed to be incorporated herein shall not be deemed “filed with”by reference to the SEC and shall not be deemedextent that statements in the later filed document modify or replace such earlier statements.
We will provide to each person, including any beneficial owner, to whom a prospectus is delivered, without charge upon written or oral request, a copy of any or all of the documents that are incorporated by reference into this prospectus or the registration statement of which this prospectus is a part.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We have filed a registration statement on Form S-3 with respect to the securities offered in this prospectusbut not delivered with the SEC in accordance with the Securities Act, and the rules and regulations enacted under its authority. This prospectus, which constitutes a part of the registration statement, does not contain all of the information included in the registration statement and its exhibits and schedules. We have omitted certain parts of the registration statement, as permitted by the rules and regulations of the SEC. You may inspect and copy the registration statement, including exhibits which are specifically incorporated by reference into such documents. These documents can also be accessed through our website at www.incontact.com. If you would like to request documents from us, please send a request in writing or by telephone to us at the SEC’s public reference room or website. Our statements in this prospectus about the contents of any contract or other document are not necessarily complete. You should refer to the copy of each contract or other document we have filed as an exhibit to the registration statement or the reports incorporated herein by reference for complete information. You may obtain a copy of any of these SEC filings without charge by written or oral request directed to ourfollowing address:
inContact, Inc.
Attn: Corporate Secretary at inContact, Inc.,
7730 SoS. Union Park Avenue, Suite 500 Midvale,
Salt Lake City, UT 84047 telephone
(801) 320-3300.320-3200
We fileInformation on Our Website
Information on any inContact website, any subsection, page, or other subdivision of any inContact website, or any website linked to by content on any inContact website, is not part of this prospectus and you should not rely on that information electronically with the SEC. Our SEC filings are available from the SEC’s Internet site at http://www.sec.gov, which contains reports, proxy andunless that information statements and other information regarding issuers that file electronically. Our filings with the SEC are available without charge on our website (www.incontact.com) as soon as reasonably practicable after filing. For further information regarding us and the securities offeredis also in this prospectus we refer you to the registration statement and its exhibits and schedules, which may be inspected without charge at the SEC’s Public Reference Room at 100 F Street N.E., Washington, D.C. 20549. Please call the SEC at (800) 732-0330 for further information on the Public Reference Room.or incorporated by reference in this prospectus.
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses in connection with this registration statement. We will pay all expenses of the offering. All of such expenses areestimates, other than the filing fees payable to the Securities and Exchange Commission.
Securities and Exchange Commission Filing Fee | $ | 350 | |
Printing Fees and Expenses | 5,000 | ||
Legal Fees and Expenses | 50,000 | ||
Accounting Fees and Expenses | 50,000 | ||
Miscellaneous | 5,000 | ||
TOTAL | $ | 110,350 |
Securities and Exchange Commission Filing Fee | $ | 462.91 | ||
Printing Fees and Expenses | 5,000.00 | |||
Legal Fees and Expenses | 25,000.00 | |||
Accounting Fees and Expenses | 25,000.00 | |||
Miscellaneous | 5,000.00 | |||
TOTAL | $ | 35,462.91 |
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
inContact’s Charter provides that, to the fullest extent that limitations on the liability of directors and officers are permitted by the Delaware General Corporation Law (the “DGCL”), no director or officer of inContact shall have any liability to inContact or its stockholders for monetary damages. The DGCL provides that a corporation’s charter may include a provision which restricts or limits the liability of its directors or officers to the corporation or its stockholders for money damages except: (1) to the extent that it is provided that the person actually received an improper benefit or profit in money, property or services, for the amount of the benefit or profit in money, property or services actually received, or (2) to the extent that a judgment or other final adjudication adverse to the person is entered in a proceeding based on a finding in the proceeding that the person’s action, or failure to act, was the result of active and deliberate dishonesty and was material to the cause of action adjudicated in the proceeding. inContact’s Charter and Bylaws provide that inContact shall indemnify and advance expenses to its currently acting and its former directors to the fullest extent permitted by the DGCL and that inContact shall indemnify and advance expenses to its officers to the same extent as its directors and to such further extent as is consistent with law.
The Charter and Bylaws provide that inContact will indemnify its directors and officers and may indemnify employees or agents of inContact to the fullest extent permitted by law against liabilities and expenses incurred in connection with litigation in which they may be involved because of their offices with inContact. However, nothing in the Charter or Bylaws of inContact protects or indemnifies a director, officer, employee or agent against any liability to which he would otherwise be subject by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of his office. To the extent that a director or officer has been successful in defense of any proceeding, our Bylaws provide that he shall be indemnified against reasonable expenses incurred in connection therewith.
inContact maintains an officer’s and director’s liability insurance policy insuring its officers and directors against certain liabilities and expenses incurred by them in their capacities as such, and insuring the inContact under certain circumstances, in the event that indemnification payments are made to such officers and directors.
inContact has also entered into indemnification agreements (the “Indemnification Agreements”) with certain of its directors and officers (individually, the “Indemnitee”). The Indemnification Agreements, among other things, provide for indemnification to the fullest extent permitted by law against any and all expenses, judgments, fines, penalties and amounts paid in settlement of any claim. The Indemnification Agreements provide for the prompt advancement of all expenses to the Indemnitee and for reimbursement to inContact if it is found that such
I
Indemnitee is not entitled to such indemnification under applicable law. The Indemnification Agreements also provide that after a change in control (as defined in the Indemnification Agreements) of inContact, all determinations regarding a right to indemnity and the right to advancement of expenses shall be made by independent legal counsel selected by the Indemnitee.
I
The foregoing summaries are necessarily subject to the complete text of the statute, the Company’s Certificate of Incorporation, as amended, and Bylaws, and the arrangements referred to above and are qualified in their entirety by reference thereto.
ITEM 16. EXHIBITS
Exhibits
Copies of the following documents are included as exhibits hereto pursuant to Item 601 of Regulation S-K.
Exhibit No. | Title of Document | |
| 4.1 | Registration Rights of Selling Security Holders | |
| 5.1 | Opinion of Parsons Behle & Latimer | |
| 23.1 | Consent of Parsons Behle & Latimer (1) | |
| 23.2 | Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm | |
| 24.1 | Power of Attorney (contained in the signature page hereto, Page V) | |
| (1) | The consent is included in Exhibit 5.1. |
ITEM 17. 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 of 1933;
(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 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
II
(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 (i), (ii) and (iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement;
II
(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;
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date; and
(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of an undersigned registrant; and
III
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) 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.
III
(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 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 Act and will be governed by the final adjudication of such issue.
IV
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-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Midvale,Salt Lake City, State of Utah, on August 9, 2010.2013.
| INCONTACT, INC. | ||
| By | /s/ | |
Paul Jarman, Chief Executive Officer | ||
| (Principal Executive Officer) | ||
| By | /s/ | |
Gregory S Ayers, Chief Financial Officer | ||
| (Principal Financial Officer and Accounting Officer) | ||
Pursuant to the requirements of the Securities Act of 1933, this registration statement on Form S-3 has been signed by the following persons in the capacities and on the dates indicated. Each person whose signature appears below on this Registration Statement hereby constitutes and appoints Paul Jarman and Gregory S. Ayers, and each of them, with full power to act without the other, his or her true and lawful attorney-in-fact and agent, 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 (until revoked in writing) to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all 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 fully to all intents and purposes as he or she might or could do in person thereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their, his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
/s/ | Theodore Stern Theodore Stern, Director | Date: August 9, | ||
| 2013 | ||||
/s/ | Steve M. Barnett Steve M. Barnett, Director | Date: August 9, | ||
| 2013 | ||||
/s/ | Blake O. Fisher Blake O. Fisher, Jr., Director | Date: August 9, | ||
| 2013 | ||||
/s/ | Paul F. Koeppe Paul F. Koeppe, Director | Date: August 9, | ||
| 2013 | ||||
/s/ | Mark J. Emkjer Mark J. Emkjer, Director | Date: August 9, | ||
| 2013 | ||||
/s/ | Hamid Akhavan Hamid Akhavan, Director | Date: August 9, | ||
/s/ Paul Jarman Paul Jarman, Director | Date: August 9, 2013 | |||
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