As filed with the Securities and Exchange Commission on July 28, 2000
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
CONCERO INC.
(Exact name of registrant as specified in its charter)
Delaware 74-2796054
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
6300 Bridgepoint Parkway, Building 3, Suite 200
Austin, Texas 78730
(Address of principal executive offices) (Zip Code)
CONCERO INC. 1996 STOCK OPTION/STOCK ISSUANCE PLAN
CONCERO INC. 2000 NON-OFFICER STOCK OPTION/STOCK ISSUANCE PLAN
CONCERO INC. EMPLOYEE STOCK PURCHASE PLAN
Timothy D. Webb
President and Chief Executive Officer
CONCERO INC.
6300 Bridgepoint Parkway, Building 3, Suite 200
Austin, Texas 78730
(Name and address of agent for service)
(512) 343-6666
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
Title of Securities Amount Proposed Maximum Proposed Amount of
to be Registered to be Offering Price Maximum Aggregate Registration
Registered(1) per Share(2) Offering Price(2) Fee
Concero Inc. 1996 1,500,000 shares $ 10.41 $ 15,615,000 $4,122
Stock Option/Stock
Issuance Plan -
Common Stock, $0.01
par value
Concero Inc. 2000 250,000 shares $ 10.41 $ 2,602,500 $ 687
Non-Officer Stock
Option/Stock
Issuance Plan -
Common Stock, $0.01
par value
Concero Inc. 500,000 shares $ 10.41 $ 5,205,000 $1,375
Employee Stock
Purchase Plan -
Common Stock,
$0.01par value
Aggregate Shares 2,250,000 shares Aggregate Registration Fee $ 6,184
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Concero Inc. 1996 Stock
Option/Stock Issuance Plan, the Concero Inc. 2000 Non-Officer Stock
Option/Stock Issuance Plan, and the Concero Inc. Employee Stock
Purchase Plan by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the
Registrant's receipt of consideration which results in an increase in
the number of the outstanding shares of the Registrant's Common Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of
the Securities Act of 1933, as amended, on the basis of the average of
the high and low selling prices per share of the Registrant's Common
Stock on July 27, 2000, as reported on the Nasdaq National Market.
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II-4.
PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference
Concero Inc. (the "Registrant") hereby incorporates by reference into
this Registration Statement the following documents previously filed with the
Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999 filed with the Commission on March 14, 2000 pursuant
to Section 13 of the Securities Exchange Act of 1934, as amended
(the "1934 Act");
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 2000 filed with the Commission on May 15, 2000 pursuant
to Section 13 of the 1934 Act;
(c) The Registrant's Current Reports on Forms 8-K, filed with the Commission
on April 18, 2000, and April 21, 2000; and
(d) The Registrant's Registration Statement on Form 8-A, No. 000-22327 filed
with the Commission on May 29, 1997, pursuant to Section 12(g) of the
1934 Act, in which there is described the terms, rights and provisions
applicable to the Registrant's outstanding Common Stock.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained 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 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.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
The Registrant's Certificate of Incorporation provides that, except to
the extent prohibited by the Delaware General Corporation Law ("DGCL"), its
directors shall not be personally liable to the Registrant or its stockholders
for monetary damages for any breach of fiduciary duty as directors of the
Registrant. Under Delaware law, the directors have a fiduciary duty to the
Registrant that is not eliminated by this provision of the Certificate of
Incorporation and, in appropriate circumstances, equitable remedies such as
injunctive or other forms of non-monetary relief will remain available. In
addition, each director will continue to be subject to liability under Delaware
law for breach of the director's duty of loyalty to the Registrant, for acts or
omissions which are found by a court of competent jurisdiction to be not in good
faith or involving intentional misconduct, for knowing violations of law, for
actions leading to improper personal benefit to the director, and for payment of
dividends or approval of stock repurchases or redemptions that are prohibited by
Delaware law. This provision also does not affect the
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directors' responsibilities under any other laws, such as the Federal securities
laws or state or Federal environmental laws. The Registrant maintains liability
insurance for its officers and directors.
The Certificate of Incorporation also provides that the Registrant
shall indemnify, to the fullest extent permitted by Section 145 of the DGCL, all
of its present and former officers and directors, and any party agreeing to
serve as an officer, director or trustee of any entity at the Registrant's
request, in connection with any civil or criminal proceeding threatened or
instituted against such party by reason of actions or omissions while serving in
such capacity. Indemnification by the Registrant includes payment of expenses in
defense of the indemnified party in advance of any proceeding or final
disposition thereof. The rights to indemnification provided in this provision do
not preclude the exercise of any other indemnification rights by any party
pursuant to any law, agreement or vote of the stockholders or the disinterested
directors of the Registrant.
Section 145 of the DGCL generally allows the Registrant to indemnify
the parties described in the preceding paragraph for all expenses, judgments,
fines and amounts in settlement actually paid and reasonably incurred in
connection with any proceedings so long as such party acted in good faith and in
a manner reasonably believed to be in or not opposed to the Registrant's best
interests and, with respect to any criminal proceedings, if such party had no
reasonable cause to believe his or her conduct to be unlawful. Indemnification
may only be made by the Registrant if the applicable standard of conduct set
forth in Section 145 has been met by the indemnified party upon a determination
made (i) by the Board of Directors by a majority vote of the directors who are
not parties to such proceedings (even though less than a quorum), or (ii) if
there are no such directors, or if such directors so direct, by independent
legal counsel in a written opinion, or (iii) by the stockholders.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
Exhibit Number Exhibit
*4.1 Instruments Defining the Rights of Stockholders.
5.1 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.1
99.1 Concero Inc. 1996 Stock Option/Stock Issuance Plan (As
Amended and Restated on May 17, 2000).
99.2 Concero Inc. 2000 Non-Officer Stock Option/Stock Issuance
Plan (As Amended and Restated on May 17, 2000).
99.3 Concero Inc. Employee Stock Purchase Plan (As Amended and
Restated on May 17, 2000).
* Incorporated herein by reference pursuant to Item 3(d) of this
Registration Statement, reference is made to the Registrant's
Registration Statement on Form S-8, No. 000-29372, including the
exhibits thereto.
Item 9. Undertakings
A. The undersigned Registrant hereby undertakes:(1)to file, during any period in
which offers or sales are being made, a post-effective amendment to this
Registration Statement(i)to include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933, as amended (the "1933 Act"),(ii) to reflect in
the prospectus any facts or events arising after the effective date of this
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 this Registration Statement and (iii) to include any
material information with respect to the plan of distribution not previously
disclosed in this Registration Statement or any material change to such informa-
tion in this Registration Statement; provided, however, that clauses (1)(i) and
1)(ii) shall not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic reports filed
by the Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that
are incorporated by reference into this Registration Statement; 2)that for the
purpose of determining any liability under the 1933 Act each such post-
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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 and
(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
Registrant's 1996 Stock Option/Stock Issuance Plan, 2000 Non-Officer Stock
Option/Stock Issuance Plan, or Employee Stock Purchase Plan.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is
incorporated by reference into this Registration Statement shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the 1933 Act may be
permitted to directors, officers or controlling persons of the Registrant
pursuant to the indemnity provisions summarized in Item 6, or otherwise, the
Registrant has been advised that, in the opinion of the Commission, such
indemnification is against public policy as expressed in the 1933 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 1933 Act and will be governed by the final
adjudication of such issue.
SIGNATURES
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 Austin, State of Texas, on this 28th day of
July 2000.
CONCERO INC.
By:
/S/ Timothy D. Webb
Timothy D. Webb
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Concero Inc., a Delaware
corporation, do hereby constitute and appoint Timothy D. Webb, President and
Chief Executive Officer, and Keith D. Thatcher, Senior Vice President of Finance
and Chief Financial Officer and Treasurer, and each of them, the lawful
attorneys-in-fact and agents with full power and authority to do any and all
acts and things and to execute any and all instruments which said attorneys and
agents, and any one of them, determine may be necessary or advisable or required
to enable said corporation to comply with the Securities Act of 1933, as
amended, and any rules or regulations or requirements of the Securities and
Exchange Commission in connection with this Registration Statement. Without
limiting the generality of the foregoing power and authority, the powers granted
include the power and authority to sign the names of the undersigned officers
and directors in the capacities indicated below to this Registration Statement,
to any and all amendments, both pre-effective and post-effective, and
supplements to this Registration Statement, and to any and all instruments or
documents filed as part of or in conjunction with this Registration Statement or
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amendments or supplements thereof, and each of the undersigned hereby ratifies
and confirms that all said attorneys and agents, or any one of them, shall do or
cause to be done by virtue hereof. This Power of Attorney may be signed in
several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
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<S> <C> <C>
Signature Title Date
/s/Timothy D. Webb President and Chief Executive Officer July 28, 2000
(Principal Executive Officer)
-------------------------------------------------
Timothy D. Webb
/s/Keith D. Thatcher Senior Vice President of Finance, Treasurer July 28, 2000
and Chief Financial Officer
(Principal Financial Officer)
-------------------------------------------------
Keith D. Thatcher
/s/Kasaundra L. Smith Controller (Principal Accounting Officer) July 28, 2000
-------------------------------------------------
Kasaundra L. Smith
/s/Wade E. Saadi Chairman of the Board of Directors July 28, 2000
-------------------------------------------------
Wade E. Saadi
/s/Edward C. Ateyeh, Jr. Director July 28, 2000
-------------------------------------------------
Edward C. Ateyeh, Jr.
/s/W. Frank King Director July 28, 2000
-------------------------------------------------
W. Frank King
/s/Kevin B. Kurtzman Director July 28, 2000
-------------------------------------------------
Kevin B. Kurtzman
/s/Michael J. Maples Director July 28, 2000
-------------------------------------------------
Michael J. Maples
/s/Thomas A. Herring Director July 28, 2000
-------------------------------------------------
Thomas A. Herring
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EXHIBIT INDEX
Exhibit Number Exhibit
*4.1 Instruments Defining the Rights of Stockholders.
5.1 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.1
99.1 Concero Inc. 1996 Stock Option/Stock Issuance Plan (As
Amended and Restated on May 17, 2000).
99.2 Concero Inc.2000 Non-Officer Stock Option/Stock Issuance
Plan (As Amended and Restated on May 17, 2000).
99.3 Concero Inc. Employee Stock Purchase Plan (As Amended and
Restated on May 17, 2000).
*Incorporated herein by reference pursuant to Item 3(d) of this Registration
Statement, reference is made to the Registrant's Registration Statement on
Form S-8, No. 000-29372, including the exhibits thereto.
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