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Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NetGenesis Corp.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 04-3236862
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
150 CAMBRIDGEPARK DRIVE, 02140
CAMBRIDGE MASSACHUSETTS (Zip Code)
(Address of Principal Executive Offices)
NETGENESIS CORP. 1995 INCENTIVE STOCK OPTION PLAN
NETGENESIS CORP. 1999 STOCK INCENTIVE PLAN
NETGENESIS CORP. 1999 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plans)
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MR. LAWRENCE S. BOHN
President and Chief Executive Officer
NETGENESIS CORP.
150 CambridgePark Drive
Cambridge, Massachusetts 02140
(Name and Address of Agent For Service)
(617) 665-9200
(Telephone Number, Including Area Code, of Agent For Service)
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WITH COPIES TO:
John D. Patterson, Jr., Esquire
Robert W. Sweet, Jr., Esquire
Foley, Hoag & Eliot LLP
One Post Office Square
Boston, Massachusetts 02109
(617) 832-1000
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF PROPOSED PROPOSED
SECURITIES AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TO BE TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED PER SHARE OFFERING PRICE FEE
<S> <C> <C> <C> <C>
Common Stock,
$.001 par value 1,512,581 shares (1) $1.62 (2) $2,450,382 $647
Common Stock,
$.001 par value 907,000 shares (3) $7.96 (4) $7,219,720 $1,907
Common Stock,
$.001 par value 2,843,000 shares (5) $37.04 (6) $105,304,720 $27,801
Common Stock,
$.001 par value 382,500 shares (7) $31.49 (8) $12,044,925 $3,180
</TABLE>
(1) Represents shares of Common Stock issuable upon exercise of stock
options granted pursuant to the NetGenesis Corp. ("NetGenesis") 1995 Incentive
Stock Option Plan (the "1995 Option Plan").
(2) Calculated pursuant to Rule 457(h)(1) under the Securities Act of
1933 based on the weighted average
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exercise price per share of the options outstanding under the 1995 Option Plan.
(3) Represents shares of Common Stock issuable upon exercise of stock
options granted pursuant to the NetGenesis 1999 Stock Incentive Plan (the "1999
Option Plan").
(4) Calculated pursuant to Rule 457(c) and (h)(1) under the Securities
Act of 1933 based on the weighted average exercise price per share of the
options outstanding under the 1999 Option Plan.
(5) Represents shares of Common Stock issuable upon exercise of stock
options available for grant pursuant to the 1999 Option, including an aggregate
of 1,125,000 shares that will become available for grant under the 1999 Option
Plan within three years of its adoption.
(6) Calculated pursuant to Rule 457(c) and (h)(1) under the Securities
Act of 1933 based on the average of the high and low sale prices of the common
stock as reported on the Nasdaq National Market on March 30, 2000.
(7) Represents shares of Common Stock issuable upon exercise of stock
options available for grant pursuant to the NetGenesis 1999 Employee Stock
Purchase Plan (the "1999 Purchase Plan"), including an aggregate of 157,500
shares that will become available for grant under the 1999 Purchase Plan within
three years of its adoption.
(8) Calculated pursuant to Rule 457(c) and (h)(1) under the Securities
Act of 1933 based on 85% of the average of the high and low sale prices of the
common stock as reported on the Nasdaq National Market on March 30, 2000.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by NetGenesis Corp. (the "Registrant")
with the Securities and Exchange Commission (the "Commission") are incorporated
in this Registration Statement by reference:
(a) The Registrant's Prospectus (the "Prospectus") dated February
29, 2000 included in the Registrant's registration statement
on Form S-1, File Number 333-93335, as declared effective by
the Commission on February 28, 2000.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by
the Prospectus.
(c) The description of the Registrant's common stock contained in
the registration statement on Form 8-A filed with the
Commission on February 25, 2000 under Section 12 of the
Securities Exchange Act of 1934, including any amendment or
report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this registration statement and to be part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the securities registered hereby is being passed upon
for the Registrant by Foley, Hoag & Eliot LLP, Boston, Massachusetts.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
provides that a corporation has the power to indemnify a director, officer,
employee or agent of the corporation and certain other persons serving at the
request of the corporation in related capacities against amounts paid and
expenses incurred in connection with an action or proceeding to which he is or
is threatened to be made a party by reason of such position, if such person
shall have acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation, and, in any criminal
proceeding, if such person had no reasonable cause to believe his conduct was
unlawful, provided that, in the case of actions brought by or in the right of
the corporation, no indemnification shall be made with respect to any matter as
to which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the adjudicating court determines that such
indemnification is proper under the circumstances.
Article SEVENTH of the Registrant's Amended and Restated Certificate of
Incorporation (the "Certificate of Incorporation") provides that the Registrant
shall indemnify each person who at any time is, or shall have been a director or
officer of the Registrant, and is threatened to be or is made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or
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investigative, by reason of the fact that he is, or was, a director or officer
of the Registrant, or served at the request of the Registrant as a director,
officer, employee, trustee, or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement incurred in connection
with any such action, suit or proceeding to the maximum extent permitted by the
General Corporation Law of Delaware.
Article SEVENTH of the Certificate of Incorporation further provides
that the indemnification provided therein is not exclusive of any other rights
of indemnification to which any such director or officer may be entitled, under
any by-law, agreement, vote of directors or stockholders or otherwise.
Article NINTH of the Certificate of Incorporation provides that to the
maximum extent permitted by the General Corporation Law of Delaware as the same
exists or may hereafter be amended, no director shall be personally liable to
the Registrant or its stockholders for monetary damages arising out of a breach
of his fiduciary duty as a director.
The Registrant has a Directors and Officers liability policy that
insures the Registrant's officers and directors against certain liabilities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 NetGenesis Corp. Amended and Restated Certificate of
Incorporation.*
4.2 Amended and Restated By-Laws of NetGenesis Corp.*
4.3 1995 Stock Option Plan*
4.4 1999 Stock Incentive Plan*
4.5 1999 Employee Stock Purchase Plan*
5.1 Opinion of Foley, Hoag & Eliot LLP
23.1 Consent of Foley, Hoag & Eliot LLP (included in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Power of Attorney (contained on the signature page of this
Registration Statement)
* Incorporated by reference to the Registrant's Registration Statement on Form
S-1, File Number 333-93335, as declared effective by the Commission on February
28, 2000.
ITEM 9. UNDERTAKINGS.
1. The undersigned registrant hereby undertakes:
(a) to file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement 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.
(b) that, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) 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.
2. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or 15(d) of
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the Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Cambridge, Massachusetts, as of March 31, 2000.
NETGENESIS CORP.
By: /s/ John Delea
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John Delea
Chief Financial Officer,
Vice President, Finance and
Administration, Treasurer and
Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints Lawrence S. Bohn and John Delea, and each
of them, his true and lawful attorneys-in-fact and agents with full power of
substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto,
and all documents in connection therewith, with the 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 which they, or any of them, may deem
necessary or advisable to be done in connection with this Registration
Statement, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or any substitute or substitutes for him, any or all of
them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the indicated capacities
as of March 31, 2000.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Lawrence S. Bohn Chairman of the Board, President and March 31, 2000
----------------------- Chief Executive Officer (Principal Executive
Lawrence S. Bohn Officer)
/s/ Kathleen L. Biro Director March 31, 2000
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Kathleen L. Biro
/s/ Ted R. Dintersmith Director March 31, 2000
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Ted R. Dintersmith
/s/ Robert N. Goldman Director March 31, 2000
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Robert N. Goldman
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Rory O'Driscoll Director March 31, 2000
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Rory O'Driscoll
/s/ Stephen J. Ricci Director March 31, 2000
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Stephen J. Ricci
</TABLE>
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Exhibit 5.1
FOLEY, HOAG & ELIOT LLP
ONE POST OFFICE SQUARE
BOSTON, MASSACHUSETTS 02109-2170
Telephone 617-832-1000
Facsimile 617-832-7000
http://www.fhe.com
March 31, 2000
NetGenesis Corp.
150 CambridgePark Drive
Cambridge, Massachusetts 02140
Ladies and Gentlemen:
We are familiar with the Registration Statement on Form S-8 (the "S-8
Registration Statement") filed today by NetGenesis Corp., a Delaware corporation
(the "Company"), with the Securities and Exchange Commission under the
Securities Act of 1933, as amended. The S-8 Registration Statement relates to
the offering by the Company of up to 5,645,081 shares (the "Shares") of its
common stock, par value $.001 per share, issuable upon exercise of stock options
granted or to be granted pursuant to the NetGenesis Corp. 1995 Incentive Stock
Option Plan (the "1995 Option Plan"), the NetGenesis Corp. 1999 Stock Incentive
Plan (the "1999 Option Plan") and the NetGenesis Corp. 1999 Employee Stock
Purchase Plan (the "1999 Purchase Plan").
In arriving at the opinion expressed below, we have examined and relied
on the following documents:
1. The Amended and Restated Certificate of Incorporation, and the
Amended and Restated By-Laws of the Company.
2. The records of meetings and consents of the Board of Directors
and stockholders of the Company provided to us by the Company.
3. The 1995 Option Plan.
4. The 1999 Option Plan.
5. The 1999 Purchase Plan.
In addition, we have examined and relied on the originals or copies
certified or otherwise identified to our satisfaction of all such corporate
records of the Company and such other instruments and other certificates of
public officials, officers and representatives of the Company and such other
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NetGenesis Corp.
March 31, 2000
Page 2
persons, and we have made such investigations of law, as we have deemed
appropriate as a basis for the opinions expressed below.
Based upon the foregoing, it is our opinion that:
1. The Company has corporate power adequate for the issuance of the
Shares in accordance with the S-8 Registration Statement.
2. The Company has taken all necessary corporate action required to
authorize the issuance and sale of the Shares.
3. When certificates for the Shares have been duly executed and
countersigned, and delivered against due receipt of the exercise price for the
Shares as described in the options relating thereto and the 1995 Option Plan,
the 1999 Option Plan and the 1999 Purchase Plan, the Shares will be legally
issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
S-8 Registration Statement.
Very truly yours,
FOLEY, HOAG & ELIOT LLP
By: /s/ Robert W. Sweet, Jr.
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a Partner
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CONSENT OF PRICEWATERHOUSECOOPERS
TO COME
