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As filed with the Securities and Exchange Commission on July 21, 1999
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MARKETWATCH.COM, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 94-3315360
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
825 BATTERY STREET
SAN FRANCISCO, CALIFORNIA 94111
(Address of Principal Executive Offices, including Zip Code)
1998 EQUITY INCENTIVE PLAN
1998 DIRECTORS STOCK OPTION PLAN
NON-PLAN STOCK OPTIONS
(Full Title of the Plans)
J. PETER BARDWICK
CHIEF FINANCIAL OFFICER
MARKETWATCH.COM, INC.
825 BATTERY STREET
SAN FRANCISCO, CALIFORNIA 94111
(415) 733-0500
(Name, Address and Telephone Number of Agent For Service)
COPIES TO:
Jeffrey R. Vetter, Esq.
Sayre E. Stevick, Esq.
Cynthia E. Garabedian, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, CA 94306
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED
AMOUNT MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED PER SHARE OFFERING PRICE FEE
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<S> <C> <C> <C> <C>
Common Stock, $0.01 par value 296,884(1) $50.125(2) $14,881,311 $ 4,137
Common Stock, $0.01 par value 1,201,700(3) $18.911(4) $22,725,349 $ 6,318
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TOTAL 1,498,584 $37,606,660 $10,455
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</TABLE>
(1) Represents the aggregate of 266,884 and 30,000 available for grant as of
July 19, 1999 under the 1998 Equity Incentive Plan and the 1998 Directors
Stock Option Plan, respectively. Shares that cease to be subject to Non-Plan
Stock Options for any reason other than exercise of such Non-Plan Stock
Options become available for issuance under the 1998 Equity Incentive Plan.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) under the Securities Act of 1933 and based upon
an average of the high and low prices reported on the Nasdaq National Market
on July 19, 1999.
(3) Shares subject to outstanding options as of July 19, 1999, pursuant to
Non-Plan Stock Options and under the 1998 Equity Incentive Plan and the 1998
Directors Stock Option Plan. Shares that cease to be subject to Non-Plan
Stock Options for any reason other than exercise of such Non-Plan Stock
Options become available for issuance under the 1998 Equity Incentive Plan.
(4) Weighted average exercise price for such outstanding options pursuant to
Rule 457(h)(1).
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MARKETWATCH.COM, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The Registrant's latest annual report on Form 10-K filed pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), which contains audited financial
statements for the Registrant's latest fiscal year.
(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
annual report referred to in (a) above.
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed under
Section 12(g) of Exchange Act, 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 registered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed incorporated by reference herein and to be a part hereof from the date
of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS AND LIMITATION OF LIABILITY.
Section 145 of the Delaware General Corporation Law authorizes a court
to award, or 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.
As permitted by the Delaware General Corporation Law, the Registrant's
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 (i) for any breach
of the director's duty of loyalty to the Registrant or its stockholders, (ii)
for acts or omissions not in good faith or that involve intentional misconduct
or a knowing violation of law, (iii) under section 174 of the Delaware General
Corporation Law (regarding unlawful dividends and stock purchases) or (iv) for
any transaction from which the director derived an improper personal benefit.
As permitted by the Delaware General Corporation Law, the Bylaws of the
Registrant provide that (i) the Registrant is required to indemnify its
directors and officers to the fullest extent permitted by the Delaware General
Corporation Law, subject to certain very limited exceptions, (ii) the Registrant
may indemnify its other employees and agents as set forth in the Delaware
General Corporation Law, (iii) the Registrant is required to advance expenses,
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as incurred, to its directors and executive officers in connection with a legal
proceeding to the fullest extent permitted by the Delaware General Corporation
Law, subject to certain very limited exceptions and (iv) the rights conferred in
the Bylaws are not exclusive.
The Registrant has entered into Indemnification Agreements with each of
its directors and executive officers to give such directors and officers
additional contractual assurances regarding the scope of the indemnification set
forth in the Registrant's Amended and Restated Certificate of Incorporation and
to provide additional procedural protections. At present, there is no pending
litigation or proceeding involving a director, officer or employee of the
Registrant regarding which indemnification is sought, nor is the Registrant
aware of any threatened litigation that may result in claims for
indemnification.
The indemnification provision in the Registrant's Amended and Restated
Certificate of Incorporation, Bylaws and the Indemnification Agreements entered
into between the Registrant and each of its directors and executive officers may
be sufficiently broad to permit indemnification of the Registrant's directors
and executive officers for liabilities arising under the Securities Act.
The Registrant, with approval by the Registrant's Board of Directors,
has obtained directors' and officers' liability insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<S> <C>
4.01 Registrant's Amended and Restated Certificate of
Incorporation (incorporated herein by reference to Exhibit
3.01 of Registrant's Annual Report on Form 10-K (File No.
000-25113) filed with the Commission on March 31, 1999 (the
"Form 10-K")).
4.02 Registrant's Bylaws (incorporated herein by reference to
Exhibit 3.03 of Registrant's Registration Statement on Form
S-1 (File No. 333-65569) filed with and declared effective
by the Commission on January 14, 1999 (the "Form S-1")).
4.03 Registrant's 1998 Directors Stock Option Plan (incorporated
herein by reference to Exhibit 10.11 of the Form S-1).
4.04 Registrant's 1998 Equity Incentive Plan (incorporated
herein by reference to Exhibit 10.12 of the Form S-1).
4.05 Form of Registrant's Non-Plan Stock Option Agreement
(incorporated herein by reference to Exhibit 10.10 of the
Form S-1).
4.06 Stockholder's Agreement, dated January 13, 1999, among
Registrant, Marketwatch.Com, LLC, CBS Broadcasting Inc.,
and Data Broadcasting Corporation. (incorporated herein by
reference to Exhibit 4.03 of the Form 10-K).
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of PricewaterhouseCoopers LLP, independent
accountants.
24.01 Power of Attorney (see page 5).
</TABLE>
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ITEM 9. UNDERTAKINGS.
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;
(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 the 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 percent change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table
in the effective registration statement;
(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 (1)(i) and (1)(ii) above do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the Registration Statement.
(2) 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.
(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.
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 therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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 provisions discussed in Item 6 hereof, 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 hereby, 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 San Francisco, State of California, on this 21st day
of July, 1999.
MARKETWATCH.COM, INC.
By: /s/ LAWRENCE S. KRAMER
-------------------------------------
Lawrence S. Kramer
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints Lawrence S. Kramer and J. Peter Bardwick,
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 on Form S-8, and to file the same with all
exhibits thereto and all 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 and about the premises, 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 his or
their substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, 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>
PRINCIPAL EXECUTIVE OFFICER:
/s/ LAWRENCE S. KRAMER President, Chief Executive July 21, 1999
- ----------------------------- Officer and Director
Lawrence S. Kramer
PRINCIPAL FINANCIAL OFFICER: Chief Financial Officer July 21, 1999
/s/ J. PETER BARDWICK
- -----------------------------
J. Peter Bardwick
PRINCIPAL ACCOUNTING OFFICER:
/s/ JOSEPH BRICHLER Controller July 21, 1999
- -----------------------------
Joseph Brichler
ADDITIONAL DIRECTORS:
Director July 21, 1999
/s/ JAMES A. DEPALMA
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James A. DePalma
/s/ ANDREW HEYWARD Director July 21, 1999
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Andrew Heyward
/s/ ALAN J. HIRSCHFIELD Director July 21, 1999
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Alan J. Hirschfield
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ MARK F. IMPERIALE Director July 21, 1999
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Mark F. Imperiale
/s/ MICHAEL H. JORDAN Director July 21, 1999
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Michael H. Jordan
/s/ ROBERT H. LESSIN Director July 21, 1999
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Robert H. Lessin
/s/ DANIEL R. MASON Director July 21, 1999
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Daniel R. Mason
/s/ ALLAN R. TESSLER Director July 21, 1999
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Allan R. Tessler
/s/ PHILIP D. HOTCHKISS Director July 21, 1999
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Philip D. Hotchkiss
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
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<S> <C>
4.01 Registrant's Amended and Restated Certificate of
Incorporation (incorporated herein by reference to Exhibit
3.01 of Registrant's Annual Report on Form 10-K (File No.
000-25113) filed with the Commission on March 31, 1999 (the
"Form 10-K")).
4.02 Registrant's Bylaws (incorporated herein by reference to
Exhibit 3.03 of Registrant's Registration Statement on Form
S-1 (File No. 333-65569) filed with and declared effective
by the Commission on January 14, 1999 (the "Form S-1")).
4.03 Registrant's 1998 Directors Stock Option Plan (incorporated
herein by reference to Exhibit 10.11 of the Form S-1).
4.04 Registrant's 1998 Equity Incentive Plan (incorporated
herein by reference to Exhibit 10.12 of the Form S-1).
4.05 Form of Registrant's Non-Plan Stock Option Agreement
(incorporated herein by reference to Exhibit 10.10 of the
Form S-1).
4.06 Stockholder's Agreement, dated January 13, 1999, among
Registrant, Marketwatch.Com, LLC, CBS Broadcasting Inc.,
and Data Broadcasting Corporation. (incorporated herein by
reference to Exhibit 4.03 of the Form 10-K).
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of PricewaterhouseCoopers LLP, independent
accountants.
24.01 Power of Attorney (see page 5).
</TABLE>
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<PAGE> 1
EXHIBIT 5.01
July 21, 1999
MarketWatch.com, Inc.
825 Battery Street
San Francisco, CA 94111
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form S-8
(the "REGISTRATION STATEMENT") to be filed by you with the Securities and
Exchange Commission (the "COMMISSION") on or about July 21, 1999 in connection
with the registration under the Securities Act of 1933, as amended, of an
aggregate of 1,498,584 shares of your Common Stock (the "STOCK") subject to
issuance by you upon the exercise of (a) stock options granted by you outside of
any stock option plan (the "NON-PLAN OPTIONS"), (b) stock options granted or to
be granted by you under your 1998 Equity Incentive Plan (the "EQUITY INCENTIVE
PLAN"), or (c) stock options granted or to be granted by you under your 1998
Directors Stock Option Plan (the "DIRECTORS PLAN"). The plans referred to in
clauses (b) and (c) above are collectively referred to in this letter as the
"PLANS." In rendering this opinion, we have examined the following:
(1) your registration statement on Form S-1 (File Number 333-65569) filed
with and declared effective by the Commission on January 14, 1999,
together with the Exhibits filed as a part thereof, including without
limitation, each of the Plans and related forms of stock option grant
and exercise agreements;
(2) your registration statement on Form 8-A (File Number 000-25113) filed
with the Commission on November 25, 1998 and declared effective on
January 14, 1999;
(3) the Registration Statement, together with the Exhibits filed as a part
thereof;
(4) the Prospectus prepared in connection with the Registration Statement;
(5) the minutes of meetings and actions by written consent of the
stockholders and Board of Directors that are contained in your minute
books and the minute books of your predecessor, Marketwatch.Com, LLC,
a Delaware limited liability company (the "PREDECESSOR"), that are in
our possession;
(6) the stock records for both you and the Predecessor that you have
provided to us (consisting of a list of stockholders issued by your
transfer agent and dated of even date herewith and a list of option,
warrant and other rights holders respecting your capital stock and of
any rights to purchase capital stock that was prepared by
<PAGE> 2
MarketWatch.com, Inc.
July 21, 1999
Page 2
you and dated July 21, 1999 verifying the number of such issued and
outstanding securities); and
(7) a Management Certificate addressed to us and dated of even date
herewith executed by the Company containing certain factual and other
representations.
We have also confirmed the continued effectiveness of your registration
under the Securities Exchange Act of 1934, as amended, by telephone call to the
offices of the Commission and have confirmed your eligibility to use Form S-8.
In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to, the genuineness of all signatures on
original documents, the authenticity and completeness of all documents submitted
to us as originals, the conformity to originals and completeness of all
documents submitted to us as copies, the legal capacity of all natural persons
executing the same, the lack of any undisclosed termination, modification,
waiver or amendment to any documents reviewed by us and the due authorization,
execution and delivery of all documents where due authorization, execution and
delivery are prerequisites to the effectiveness thereof.
As to matters of fact relevant to this opinion, we have relied solely upon
our examination of the documents referred to above and have assumed the current
accuracy and completeness of the information obtained from public officials
referred to above. We have made no independent investigation or other attempt to
verify the accuracy of any of such information or to determine the existence or
non-existence of any other factual matters; however, we are not aware of any
facts that would cause us to believe that the opinion expressed herein is not
accurate.
We are admitted to practice law in the State of California, and we express
no opinion herein with respect to the application or effect of the laws of any
jurisdiction other than the existing laws of the United States of America and
the State of California and (without reference to case law or secondary sources)
the existing Delaware General Corporation Law.
Based upon the foregoing, it is our opinion that the 1,498,584 shares of
Stock that may be issued and sold by you upon the exercise of (a) stock options
granted or to be granted under the Equity Incentive Plan or the Directors Plan
and (b) the Non-Plan Options, when issued and sold in accordance with the
applicable plan and stock option or purchase agreements to be entered into
thereunder, and in the manner referred to in the relevant Prospectus associated
with the Registration Statement, will be validly issued, fully paid and
nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us, if any, in the
Registration Statement, the Prospectus constituting a part thereof and any
amendments thereto.
<PAGE> 3
MarketWatch.com, Inc.
July 21, 1999
Page 3
This opinion speaks only as of its date and we assume no obligation to
update this opinion should circumstances change after the date hereof. This
opinion is intended solely for the your use as an exhibit to the Registration
Statement for the purpose of the above sale of the Stock and is not to be relied
upon for any other purpose.
Very truly yours,
/s/ FENWICK & WEST LLP
----------------------
FENWICK & WEST LLP
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 12, 1999 relating to the
financial statements of MarketWatch.com, Inc., which appear in MarketWatch.com,
Inc.'s Annual Report on Form 10-K for the year ended December 31, 1998.
/s/ PRICEWATERHOUSECOOPERS LLP
PRICEWATERHOUSECOOPERS LLP
San Jose, California
July 16, 1999
