Mattersight Corp Form S-8 Filed 2017-12-27

As filed with the United States Securities and Exchange Commission on December 27, 2017

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

(Name, address, including zip code, and telephone number, including area code, of agent for service)

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b2 of the Exchange Act.

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.☐

Pursuant to General Instruction E of Form S-8, this registration statement on Form S-8 is being filed in order to register an additional 250,000 shares of the common stock of Mattersight Corporation, a Delaware corporation (the “Registrant”), par value $0.01 per share, which are securities of the same class and relate to the same employee benefit plan, the Mattersight Corporation 1999 Employee Stock Purchase Plan, as amended, as those shares registered by the Registrant’s registration statements on Form S-8 previously filed with the Commission on February 9, 2000 (File No. 333-96473), August 28, 2001 (File No. 333-68540), and May 21, 2007 (File No. 333-143114).

The following documents filed by the Registrant with the Commission are incorporated by reference in this Registration Statement:

(e)

All documents, reports and definitive proxy or information statements filed by the Registrant on or after the date hereof pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents. Notwithstanding the foregoing, unless specifically stated to the contrary, none of the information disclosed by the Registrant under Items 2.02 or 7.01 of any Current Report on Form 8-K that the Registrant may from time to time furnish to the Commission, including any exhibits included with such information, will be incorporated by reference into, or otherwise included in, this Registration Statement. Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

We are including as exhibits to this Registration Statement certain documents that we have previously filed with the SEC as exhibits, and we are incorporating such documents as exhibits herein by reference from the respective filings identified in parentheses below.


Exhibit Number		Description

	4(i).1	Certificate of Incorporation of Mattersight Corporation, as amended (filed as Exhibit 3.1 to the Registrant’s Registration Statement on Form S-1 (Registration No. 333-94293))

	4(i).2	Certificate of Amendment to Mattersight Corporation’s Certificate of Incorporation effective December 19, 2001 (incorporated by reference to Exhibit 3.3 to Mattersight Corporation’s Annual Report on Form 10-K for the year ended December 29, 2001 filed with the SEC on March 28, 2002).

	4(i).3	Certificate of Amendment to Mattersight Corporation’s Certificate of Incorporation effective December 19, 2001 (incorporated by reference to Exhibit 3.4 to Mattersight Corporation’s Annual Report on Form 10-K for the year ended December 29, 2001 filed with the SEC on March 28, 2002).

	4(i).4	Certificate of Amendment to Mattersight Corporation’s Certificate of Incorporation effective May 31, 2011 (incorporated by reference to Exhibit 3.1 to Mattersight Corporation’s Current Report on Form 8-K filed with the SEC on May 31, 2011).

	4(ii).1	By-Laws of Mattersight Corporation (incorporated by reference to Exhibit 3.2 to the S-1).

	4(ii).2	Amendment to By-Laws of Mattersight Corporation (incorporated by reference to Exhibit 3.1 to Mattersight Corporation’s Current Report on Form 8-K filed with the SEC on November 16, 2007).



	4.3	Current Form of Common Stock Certificate (adopted as of December 3, 2013) (incorporated by reference to Exhibit 4.6 to the Registrant’s Annual Report on Form 10-K for the year ended December 30, 2013).

	4.4	Mattersight Corporation 1999 Employee Stock Purchase Plan (as Amended and Restated effective February 16, 2016) (incorporated by reference to Exhibit 10.2 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2015 filed with the SEC on March 11, 2016).

	5.1	Opinion of Cooley LLP.

	23.1	Consent of Grant Thornton LLP.

	23.2	Consent of Cooley LLP (included in Exhibit 5.1).

	24.1	Power of Attorney from Tench Coxe, Director.

	24.2	Power of Attorney from Henry J. Feinberg, Director.

	24.3	Power of Attorney from John T. Kohler, Director.

	24.4	Power of Attorney from Philip R. Dur, Director.

	24.5	Power of Attorney from Michael J. Murray, Director.

	24.6	Power of Attorney from John C. Staley, Director.

Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Chicago, State of Illinois, on December 27, 2017.

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated as of December 27, 2017.

Name		Capacity

/S/ KELLY D. CONWAY		Director, President and Chief Executive Officer (Principal Executive Officer)
Kelly D. Conway

/s/ Tench Coxe		Chairman of the Board and Director
Tench Coxe		Chairman of the Board and Director

/s/ Philip R. Dur		Director
Philip R. Dur		Director

/s/ Henry J. Feinberg		Director
Henry J. Feinberg		Director

/s/ John T. Kohler		Director
John T. Kohler		Director

/s/ Michael J. Murray		Director
Michael J. Murray		Director

/s/ John C. Staley		Director
John C. Staley		Director

/s/ DAVID B. MULLEN		Director, Senior Vice President and Chief Financial Officer (Principal Financial Officer)
David B. Mullen

/S/ ROSE CAMMARATA		Vice President and Controller (Principal Accounting Officer)
Rose Cammarata

We have acted as counsel to Mattersight Corporation, a Delaware corporation (the “Company”), and you have requested our opinion in connection with the filing of a registration statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission covering the offering of up to 250,000 shares (the “Shares”) of the Company’s Common Stock, par value $0.01 per share (“Common Stock”), pursuant to an amendment to the Company’s 1999 Employee Stock Purchase Plan (the “1999 ESPP”) approved by stockholders in May 2017.

In connection with this opinion, we have examined and relied upon (a) the Registration Statement and related prospectuses, (b) the 1999 ESPP, (c) the Company’s Certificate of Incorporation and Bylaws, as currently in effect, and (d) such other records, documents, certificates, memoranda, and other instruments as we deem necessary or appropriate to enable us to render the opinion expressed below. We have assumed the genuineness and authenticity of all documents submitted to us as originals and the conformity to originals of all documents submitted to us as copies thereof. As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not sought to independently verify such matters.

Our opinion is expressed only with respect to the General Corporation Law of the State of Delaware. We express no opinion to the extent that any other laws are applicable to the subject matter hereof and no opinion and provide no assurance as to compliance with any federal or state securities law, rule or regulation.

On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when sold and issued in accordance with the 1999 ESPP, the Registration Statement, and related prospectuses, will be validly issued, fully paid, and nonassessable.

Cooley LLP 380 Interlocken Crescent Suite 900 Broomfield, CO 80021-8023
t: (720) 566-4000 f: (720) 566-4099 cooley.com

We consent to the filing of this opinion as an exhibit to the Registration Statement.

We have issued our reports dated March 16, 2017, with respect to the consolidated financial statements, schedule, and internal control over financial reporting included in the Annual Report of Mattersight Corporation on Form 10-K for the year ended December 31, 2016, which are incorporated by reference in this Registration Statement. We consent to the incorporation by reference of the aforementioned reports in this Registration Statement.

KNOW ALL MEN BY THESE PRESENTS, that the undersigned director of Mattersight Corporation, a Delaware corporation (the “Company”), hereby constitutes and appoints each of Kelly Conway, Corrine Taylor and David Mullen, signing singly, as the undersigned’s true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, to:

(a) execute for, in the name of, and on behalf of the undersigned, in the undersigned’s capacity as a director of the Company, a Registration Statement on Form S-8 for the purpose of registering for resale the shares to be authorized for issuance under the Mattersight Corporation 1999 Employee Stock Purchase Plan, and any and all amendments (including post-effective amendments) thereto deemed necessary, appropriate, or desirable (collectively, the “S-8 Forms”), pursuant to the Securities Exchange Act of 1934 and the rules thereunder;

(b) do and perform any and all acts for and on behalf of the undersigned that may be necessary, appropriate, or desirable to complete and execute any such S-8 Forms and timely file any such S-8 Forms with the U.S. Securities and Exchange Commission and any stock exchange or market or similar authority; and

(d) take any other action of any type whatsoever in connection with the foregoing which, in the opinion of such attorney-in-fact, may be required, appropriate, or desirable to be done in the exercise of any of the rights and powers herein granted, as fully to all intents and purposes as the undersigned might or could do if personally present, hereby ratifying and confirming all that such attorney-in-fact, or such attorney-in-fact’s substitute or substitutes, shall lawfully do or cause to be done by virtue of this Power of Attorney and the rights and powers herein granted.

IN WITNESS WHEREOF, the undersigned has signed this Power of Attorney as of this 7th day of August 2017.

IN WITNESS WHEREOF, the undersigned has signed this Power of Attorney as of this 8th day of August 2017.

Large accelerated filer	☐	Accelerated filer	☒

Non-accelerated filer	☐ (Do not check if a smaller reporting company)	Smaller reporting company	☐
		Emerging growth company	☐

(1)	Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended, (the “Securities Act”) this Registration Statement shall also cover any additional shares of Registrant’s common stock (the “Common Stock”) that become issuable under the plans set forth herein by reason of any stock dividend, stock split, recapitalization, or other similar transaction effected that results in an increase to the number of outstanding shares of Registrant’s Common Stock, as applicable.
(2)	With respect to the shares of common stock being registered hereunder, estimated pursuant to Rule 457(c) of the Securities Act of 1933, as amended, solely for the purpose of computing the amount of the registration fee, based upon the average of the high and low prices of Mattersight Corporation’s common stock on December 20, 2017 on the NASDAQ Global Market, which was $2.55.

	/s/ John Kohler
	Signature


	John T. Kohler
	Printed Name

		/s/ Philip Dur
		Signature


		Philip R. Dur
		Printed Name

	/s/ John Staley
	Signature


	John C. Staley
	Printed Name

MATTERSIGHT CORPORATION

By		/S/ KELLY D. CONWAY
		Kelly D. Conway
		President and Chief Executive Officer




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