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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
______________________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ROWECOM INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE
(State or Other Jurisdiction of Incorporation or Organization)
04-3370008
(I.R.S. Employer Identification No.)
725 Concord Avenue, Cambridge, Massachusetts 02138
(Address of Principal Executive Offices) (Zip Code)
ROWECOM INC. 1997 STOCK INCENTIVE PLAN
ROWECOM INC. AMENDED AND RESTATED 1998 STOCK INCENTIVE PLAN
ROWECOM INC. 1999 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
ROWECOM INC. 1999 EMPLOYEE STOCK PURCHASE PLAN
(Full Titles of the Plans)
Richard R. Rowe, Ph.D.
Chairman of the Board, President,
and Chief Executive Officer
RoweCom Inc.
725 Concord Avenue
Cambridge, MA 02138
(Name and Address of Agent For Service)
(617) 497-5800
Telephone Number, Including Area Code, of Agent For Service.
Copy to:
Brian Keeler, Esq.
Bingham Dana LLP
150 Federal Street
Boston, Massachusetts 02110
(617) 951-8000
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title Of Maximum Maximum
Securities Amount Offering Aggregate Amount Of
To Be To Be Price Per Offering Registration
Registered Registered Share (1) Price Fee
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<S> <C> <C> <C> <C>
Common Stock,
$0.01 par value per share 3,000,000 $27.6875 $83,062,500 $23,092
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</TABLE>
(1) Estimated solely for the purpose of computing the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, as amended, based on
the average of the high and low prices of the Registrant's Common Stock, $0.01
par value per share, reported by the Nasdaq National Market on May 5, 1999,
1999.
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PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by RoweCom Inc. (the "Registrant") with the
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Securities and Exchange Commission (the "SEC") are hereby incorporated by
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reference into this Registration Statement: (1) the Registrant's prospectus
dated March 8, 1999, filed with the SEC pursuant to Rule 424(b)(1) under the
Securities Act of 1933, as amended (the "Securities Act"); (2) all other reports
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filed by the Registrant pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") since the end of the
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fiscal year covered by that prospectus; and (3) the description of the
Registrant's Common Stock, $0.01 par value per share (the "Common Stock"),
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contained in the Registrant's registration statement on Form 8-A filed with the
SEC on December 11, 1998, pursuant to Section 12(g) of the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
In addition, all documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act subsequent to the date
of filing of this Registration Statement and prior to the filing of a post-
effective amendment that indicates that all securities registered hereby have
been sold or that deregisters all of such securities then remaining unsold,
shall be deemed to be incorporated by reference into this Registration Statement
from the respective dates of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
As of the date of filing of this Registration Statement with the SEC, each
of the following lawyers of Bingham Dana LLP, counsel to the Registrant, held of
record the number of shares of Common Stock set forth beside his or her
respective name below. In addition to providing legal counsel to the
Registrant, Brian Keeler is its Secretary, and Johan V. Brigham is an Assistant
Secretary.
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Name No. of Shares
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<S> <C>
Brian Keeler 1,300
Johan V. Brigham 1,000
Vandana Venkatesh 600
William D. Kirchick 200
Andrea O. LeFebvre 100
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation law empowers a Delaware
corporation to indemnify its officers and directors and certain other persons to
the extent and under the circumstances set forth therein.
The Registrant's Third Amended and Restated Certificate of Incorporation
and Amended and Restated By-Laws, copies of which were filed as Exhibits 3.1 and
3.2, respectively, to the Registrant's Registration Statement on Form S-1
(No. 333-68761), provide for indemnification of officers and directors of the
Registrant and certain other persons against
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liabilities and expenses incurred by any of them in certain stated proceedings
and under certain stated conditions.
The Registrant maintains insurance for the benefit of its directors and
officers, insuring these persons against certain liabilities, including
liabilities under securities laws.
The above discussion of the Registrant's Third Amended and Restated
Certificate of Incorporation and Amended and Restated By-Laws and Section 145 of
the Delaware General Corporation Law is not exhaustive, and is qualified in its
entirety by the full text of these documents and law.
For information regarding the Registrant's undertaking to submit to
adjudication the issue of indemnification for violation of the securities laws,
see Item 9 hereof.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed as part of this Registration Statement:
4.1 Third Amended and Restated Certificate of Incorporation of the
Registrant, incorporated by reference to Exhibit No. 3.1 to the
Registrant's Registration Statement on Form S-1 (No. 333-68761).
4.2 Amended and Restated By-Laws of the Registrant, incorporated by
reference to Exhibit No. 3.2 to the Registrant's Registration
Statement on Form S-1 (No. 333-68761).
4.3 1997 Stock Incentive Plan of the Registrant, incorporated by reference
to Exhibit No. 10.1 to the Registrant's Registration Statement on Form
S-1 (No. 333-68761).
4.4 Amended and Restated 1998 Stock Incentive Plan of the Registrant,
incorporated by reference to Exhibit No. 10.4 to the Registrant's
Registration Statement on Form S-1 (No. 333-68761).
4.5 1999 Non-Employee Director Stock Option Plan of the Registrant,
incorporated by reference to Exhibit No. 10.2 to the Registrant's
Registration Statement on Form S-1 (No. 333-68761).
4.6 1999 Employee Stock Purchase Plan of the Registrant, incorporated by
reference to Exhibit No. 10.3 to the Registrant's Registration
Statement on Form S-1 (No. 333-68761).
5 Opinion of Bingham Dana LLP as to the legality of the securities being
registered.
23.1 Consent of PricewaterhouseCoopers LLP, independent accountants.
23.2 Consent of Bingham Dana LLP (included in Exhibit 5).
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24 Power of Attorney (included on the signature pages of the Registration
Statement).
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 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 information in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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;
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(3) To remove from registration by means of a post-effective amendment any
of the securities being registered that remain unsold at the
termination of the offering;
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in 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
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thereof;
(5) The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus
is sent or given, the latest annual report to security holders that is
incorporated by reference in the prospectus and furnished pursuant to
and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the
Securities Exchange Act of 1934; and, where interim financial
information required to be presented by Article 3 of Regulation S-X is
not set forth in the prospectus, to deliver, or cause to be delivered
to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information; and
(6) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 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 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, 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 Cambridge, Commonwealth of Massachusetts, as of the
23rd day of April, 1999.
ROWECOM INC.
By /s/ Richard R. Rowe
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Richard R. Rowe
Chairman of the Board, President, and
Chief Executive Officer
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POWER OF ATTORNEY
Each person whose signature appears below hereby appoints each of Richard
R. Rowe, Louis Hernandez, and Brian Keeler, acting severally, as his true and
lawful attorney-in-fact with the power and authority in his name and on his
behalf to execute and file with the Securities and Exchange Commission, together
with any exhibits thereto and other documents therewith, any and all amendments
(including without limitation post-effective amendments) to this Registration
Statement on Form S-8 as such attorney-in-fact may deem necessary or advisable
to enable the Registrant to comply with the Securities Act of 1933, as amended,
and any rules, regulations, and/or requirements of the Securities and Exchange
Commission in respect thereof, which amendments may make such other changes in
the Registration Statement as the attorney-in-fact executing and/or filing the
same deems appropriate.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the date(s) indicated.
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<CAPTION>
Signature Title(s) Date
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<S> <C> <C>
/s/ Richard R. Rowe, Ph.D
- ------------------------------------ Chairman of the Board of Directors, April 23, 1999
Richard R. Rowe, Ph.D. President, Chief Executive Officer, and
Director (principal executive officer)
/s/ Louis Hernandez
- ------------------------------------ Executive Vice President, Treasurer, and April 23, 1999
Louis Hernandez Chief Financial Officer (principal
financial and accounting officer)
/s/ Stanley Fung Director April 23, 1999
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Stanley Fung
/s/ John Kennedy Director April 23, 1999
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John Kennedy
/s/ Thomas Lemberg Director April 23, 1999
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Thomas Lemberg
/s/ Jerome Rubin Director April 23, 1999
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Jerome Rubin
/s/ Philippe Villers Director May 5, 1999
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Philippe Villers
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Exhibit Index
Exhibit No. Description of Documents
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4.1 Third Amended and Restated Certificate of Incorporation of the
Registrant, incorporated by reference to Exhibit No. 3.1 to the
Registrant's Registration Statement on Form S-1 (No. 333-68761).
4.2 Amended and Restated By-Laws of the Registrant, incorporated by
reference to Exhibit No. 3.2 to the Registrant's Registration
Statement on Form S-1 (No. 333-68761).
4.3 Amended and Restated 1998 Stock Incentive Plan of the Registrant,
incorporated by reference to Exhibit No. 10.4 to the Registrant's
Registration Statement on Form S-1 (No. 333-68761).
4.4 1997 Stock Incentive Plan of the Registrant, incorporated by reference
to Exhibit No. 10.1 to the Registrant's Registration Statement on Form
S-1 (No. 333-68761).
4.5 1999 Non-Employee Director Stock Option Plan of the Registrant,
incorporated by reference to Exhibit No. 10.2 to the Registrant's
Registration Statement on Form S-1 (No. 333-68761).
4.6 1999 Employee Stock Purchase Plan of the Registrant, incorporated by
reference to Exhibit No. 10.3 to the Registrant's Registration
Statement on Form S-1 (No. 333-68761).
5 Opinion of Bingham Dana LLP as to the legality of the securities being
registered.
23.1 Consent of PricewaterhouseCoopers LLP, independent accountants.
23.2 Consent of Bingham Dana LLP (included in Exhibit 5).
24 Power of Attorney (included on the signature pages of the
Registration Statement).
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[BINGHAM DANA LLP LETTERHEAD APPEARS HERE]
May 6, 1999
RoweCom Inc.
725 Concord Avenue
Cambridge, Massachusetts 02138
Dear Sir or Madam:
We have acted as counsel for RoweCom Inc., a Delaware corporation (the
"Company"), in connection with the Company's Registration Statement on Form S-8
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expected to be filed with the Securities and Exchange Commission on or about
May 6, 1999 (the "Registration Statement").
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The Registration Statement effects the registration of 3,000,000 shares of
the common stock, $0.01 par value per share, of the Company (the "Shares"),
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which are to be issued by the Company pursuant to the Company's 1997 Stock
Incentive Plan, Amended and Restated 1998 Stock Incentive Plan, 1999 Non-
Employee Director Stock Option Plan, and 1999 Employee Stock Purchase Plan,
respectively (collectively, the "Plans").
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We have reviewed the corporate proceedings of the Company with respect to
the authorization of the Plans and the issuance of the Shares thereunder. We
have also examined and relied upon originals or copies, certified or otherwise
identified or authenticated to our satisfaction, of such agreements,
instruments, corporate records, certificates, and other documents as we have
deemed necessary or appropriate as a basis for the opinions hereinafter
expressed. In our examination, we have assumed the genuineness of all
signatures, the conformity to the originals of all documents reviewed by us as
copies, the authenticity and completeness of all original documents reviewed by
us in original or copy form, and the legal competence of each individual
executing any document.
We further assume that all Shares issued pursuant to the Plans will be
issued in accordance with the terms of such Plans and that the purchase price of
each of the Shares will be at least equal to the par value of such Shares.
Without prejudice to the generality of the foregoing, we assume that in
connection with each award of shares of restricted stock under the Plans, the
Company will require the recipient of the award upon issuance of such shares to
pay a cash purchase price at least equal to the par value of such shares.
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RoweCom Inc.
May 6, 1999
Page 2
Subject to the limitations set forth below, we have made such examination
of law as we have deemed necessary for the purposes of this opinion. This
opinion is limited solely to the Delaware General Corporation Law as applied by
courts located in Delaware.
Based upon and subject to the foregoing, we are of the opinion that the
Shares, when issued and delivered upon the exercise of options or grant of
restricted stock awards pursuant to the respective Plans and against the payment
of the purchase price therefor, will be validly issued, fully paid, and non-
assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ BINGHAM DANA LLP
BINGHAM DANA LLP
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of RoweCom Inc. (the "Company"), related to the Company's
employee stock option and stock purchase plans, of our report dated January 15,
1999, except for the information presented in Notes 12 and 15 for which the date
is February 8, 1999, relating to the consolidated financial statements of
RoweCom Inc., which appears in the Company's Registration Statement on
Form S-1 (File No. 333-68761).
/s/ PricewaterhouseCoopers LLP
Boston, Massachusetts
May 6, 1999
