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As filed with the Securities and Exchange Commission on May 2, 2000
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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IMPROVENET, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 77-0452868
(State of Incorporation) (I.R.S. Employer Identification No.)
720 BAYSHORE ROAD, SUITE 200
REDWOOD CITY, CALIFORNIA 94063-2469
(650) 701-8000
(Address of principal executive offices)
1996 STOCK OPTION PLAN
1999 EQUITY INCENTIVE PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
RONALD B. COOPER
CHIEF EXECUTIVE OFFICER AND PRESIDENT
720 BAYSHORE ROAD, SUITE 200
REDWOOD CITY, CALIFORNIA 94063-2469
(650) 701-8000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
MARK P. TANOURY
COOLEY GODWARD LLP
3000 SAND HILL ROAD
BUILDING 3, SUITE 230
MENLO PARK, CA 94025
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
=================================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING PRICE AMOUNT OF REGISTRATION
REGISTERED REGISTERED SHARE (1) (1) FEE
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<S> <C> <C> <C> <C>
$10.48
Stock Options and Common (See Notes to Calculation of
Stock (par value $.001) 3,222,886 shares Registration Fee) $16,302,431 $4,304
=================================================================================================================================
</TABLE>
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(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h) under the Securities Act of
1933, as amended. The offering price per share and aggregate offering
price are based upon (a) the weighted average exercise price for shares
subject to outstanding options granted pursuant to ImproveNet, Inc.'s
(i) Amended and Restated 1996 Stock Option Plan and (ii) 1999 Equity
Incentive Plan and (b) the average of the high and low prices of
Registrant's Common Stock on April 27, 2000 as reported on the Nasdaq
National Market.
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The chart below details the calculations of the registration fee:
<TABLE>
<CAPTION>
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OFFERING PRICE AGGREGATE OFFERING
SECURITIES NUMBER OF SHARES PER SHARE PRICE
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<S> <C> <C> <C>
Shares issuable pursuant to
outstanding options under the 1996
Stock Option Plan 1,536,843 $ 3.28 $5,040,845.00
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Shares reserved for future issuance
pursuant to the 1996 Stock Option Plan 91,043 $ 4.44 $404,231.00
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Shares issuable pursuant to
outstanding options under the 1999
Equity Incentive Plan 658,370 $ 10.48 $6,899,718.00
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Shares reserved for future issuance
pursuant to the 1999 Equity Incentive
Plan 636,630 $ 4.44 $2,826,637.00
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Shares reserved for future issuance
pursuant to the 1999 Employee Purchase
Plan 300,000 $ 3.77 $1,131,000.00
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Proposed Maximum Offering Price $16,302,431.00
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Registration Fee $4,304.00
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</TABLE>
1.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by ImproveNet, Inc. (the "Company") with
the Securities and Exchange Commission are incorporated by reference into this
Registration Statement:
(a) The Company's registrant statements on Form S-1 under the
Securities Act of 1933, as amended (the "Securities Act") (Nos. 333-92873 and
333-32618).
(b) The description of the Company's Common Stock which is contained in
the Registration Statement on Form 8-A filed March 10, 2000, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), including any
amendment or report filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Company
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 herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the Common Stock offered hereby will be passed upon
for the Company by Cooley Godward LLP, Menlo Park, California. Investment
partnerships comprised of members and senior associates of Cooley Godward
beneficially own 24,600 shares of the Registrant's Common Stock.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law authorizes a
corporation's board of directors to grant indemnity to directors and officers in
terms sufficiently broad to permit such indemnification under certain
circumstances for liabilities, including reimbursement for expenses incurred,
arising under the Securities Act of 1933, as amended.
As permitted by Delaware law, our Fourth Amended and Restated
Certificate of Incorporation includes a provision that eliminates the personal
liability of its directors for monetary damages for breach of fiduciary duty as
a director, except for liability (1) for any breach of the director's duty of
loyalty to us or our stockholders; (2) for acts or omissions not in good faith
or that involve intentional misconduct or a knowing violation of law; (3) under
Section 174 of the Delaware General Corporation Law regarding unlawful dividends
and stock purchases; or (4) for any transaction from which the director derived
an improper personal benefit.
As permitted by Delaware law, our Fourth Amended and Restated
Certificate of Incorporation provides that (1) we are required to indemnify our
directors and officers to the fullest extent permitted by Delaware law, subject
to certain very limited exceptions; (2) we are permitted to indemnify our other
employees to the extent that we indemnify our officers and directors, unless
otherwise required by law, our Restated Certificate of Incorporation, our bylaws
or agreements; (3) we are required to advance expenses, as incurred, to our
directors and officers in connection with a legal proceeding to the fullest
extent permitted by Delaware law, subject to certain very limited exceptions;
and (4) the rights conferred in the Restated Certificate of Incorporation are
not exclusive.
Our Amended and Restated Bylaws provide that we shall indemnify our
directors and executive officers and may indemnify our other offices and
employees and other agents to the fullest extent permitted by law. We believe
that indemnification under our Amended and Restated Bylaws covers at least
negligence and gross negligence on the part of indemnified parties. Our Amended
and Restated Bylaws also permit us to secure insurance on behalf of any officer,
director, employee or other agent for any liability arising out of his or her
actions in such capacity, regardless of whether the Amended and Restated Bylaws
would permit indemnification.
We have entered into agreements to indemnify our directors and
executive officers, in addition to indemnification provided for in our Amended
and Restated Bylaws. These agreements, among other things, indemnify our
directors and executive officers for certain expenses, including attorneys'
fees, judgments, fines and
2.
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settlement amounts incurred by any such person in any action or proceeding,
including any action by us arising out of such person's services as our director
or executive officer, any of our subsidiaries or any other company or enterprise
to which the person provides services at our request. We believe that these
provisions and agreements are necessary to attract and retain qualified persons
as directors and executive officers.
EXHIBITS
EXHIBIT
NUMBER
4.1* Fourth Amended and Restated Certificate of Incorporation of
the Company.
4.2* Amended and Restated Bylaws of the Company.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of PricewaterhouseCoopers LLP, Independent
Accountants.
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit
5.1.
24.1 Power of Attorney is contained on the signature pages.
99.1* 1996 Stock Option Plan.
99.2* 1999 Equity Incentive Plan.
99.3* 1999 Employee Stock Purchase Plan.
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* Documents incorporated by reference from the Company's Registration Statement
on Form S-1, as amended (333-92873).
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:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement.
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 a 20% change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the registration statement or any material change to
such information in the registration statement;
3.
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PROVIDED, HOWEVER, that paragraphs (a)(i) and (a)(ii) do 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
issuer pursuant to section 13 or section 15(d) of the Exchange Act that
are incorporated by reference herein.
(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 herein, 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 Section 15(d)
of 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 herein, 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 Securities and
Exchange 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.
4.
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Redwood City, State of California, on May 2, 2000.
IMPROVENET, INC.
By /s/ Ronald B. Cooper
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Ronald B. Cooper
Title: Chief Executive Officer and
President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Ronald B. Cooper and Richard G. Reece,
his true and lawful attorney-in-fact and agent, with full power of substitution
and resubstitution, 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 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 to be done in connection therewith, 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 their
or his substitutes or substitute, 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 capacities and on the
dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Ronald B. Cooper Chief Executive Officer and May 2, 2000
------------------------------------ President (Principal Executive
Ronald B. Cooper Officer)
/s/ Richard G. Reece Senior Vice President, Chief May 2, 2000
------------------------------------ Financial Officer, Secretary
Richard G. Reece (Principal Financial and
Accounting Officer)
/s/ Robert L. Stevens Chairman of the Board of Directors May 2, 2000
------------------------------------
Robert L. Stevens
/s/ Andrew Anker Director May 2, 2000
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Andrew Anker
Director , 2000
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Domenico Cecere
/s/ Stuart Gannes Director May 2, 2000
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Stuart Gannes
5.
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/s/ Brian Graff Director May 2, 2000
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Brian Graff
/s/ Garrett Gruener Director May 2, 2000
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Garrett Gruener
Director , 2000
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Alex Knight
</TABLE>
6.
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
4.1* Fourth Amended and Restated Certificate of Incorporation of
the Company.
4.2* Amended and Restated Bylaws of the Company.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of PricewaterhouseCoopers LLP, Independent
Accountants.
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit
5.1.
24.1 Power of Attorney is contained on the signature pages.
99.1* 1996 Stock Option Plan.
99.2* 1999 Equity Incentive Plan.
99.3* 1999 Employee Stock Purchase Plan.
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* Documents incorporated by reference from the Company's Registration Statement
on Form S-1, as amended (333-92873).
7.
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[Cooley Opinion]
April 28, 2000 Exhibit 5.1
ImproveNet, Inc.
720 Bay Road, Suite 200
Redwood City, California 94063-2469
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by ImproveNet, Inc., Inc. (the "Company") of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission covering the offering of up to an aggregate of 3,222,886
shares of the Company's Common Stock, $.001 par value (the "Shares") pursuant
to its 1996 Stock Option Plan, 1999 Equity Incentive Plan, and 1999 Employee
Stock Purchase Plan (the "Plans").
In connection with this opinion, we have examined the Registration Statement and
related Prospectus, the Company's Restated Certificate of Incorporation and
Amended and Restated By-laws, and such other documents, records, certificates,
memoranda and other instruments as we deem necessary as a basis for this
opinion. We have assumed the genuineness and authenticity of all documents
submitted to us as originals, the conformity to originals of all documents
submitted to us as copies thereof, and the due execution and delivery of all
documents, where due execution and delivery are a prerequisite to the
effectiveness thereof.
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 Plans, the
Registration Statement and related Prospectus, will be validly issued, fully
paid, and nonassessable (except as to shares issued pursuant to certain
deferred payment arrangements, which will be fully paid and nonassessable
when such deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
COOLEY GODWARD LLP
By: /s/ Mark P. Tanoury
------------------------------------------------
Mark P. Tanoury
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of ImproveNet, Inc. of our report dated January 17,
2000, relating to the consolidated financial statements of ImproveNet, Inc.
and of our report dated November 24, 1999 relating to the financial
statements of Contractor Referral Service, LLC, which appear in the
Registration Statement on Form S-1 (No. 333-92873). We also consent to the
references to us under the heading "Experts" in the Registration Statement on
Form S-1 (No. 333-92873).
/s/ PricewaterhouseCoopers LLP
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PricewaterhouseCoopers LLP
San Jose, California
May 1, 2000
