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As filed with the Securities and Exchange Commission on June 6, 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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MOTHERNATURE.COM, INC.
(Exact Name of Registrant as specified in its charter)
Delaware 23-2832064
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
One Concord Farms
490 Virginia Road
Concord, MA 01742
(978) 929-2000
(Address of Principal Executive Offices) (Zip Code)
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MOTHERNATURE.COM, INC.
1998 Stock Plan
1999 Stock Plan
1999 Employee Stock Purchase Plan
(Full title of the plan)
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Michael I. Barach
Chief Executive Officer and President
MOTHERNATURE.COM, INC.
One Concord Farms
490 Virginia Road
Concord, MA 01742
(978) 929-2000
(Name and Address of Agent for Service of Process)
(978) 929-2000
(Telephone Number, Including Area Code, of Agent For Service)
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Copy to:
Howard S. Rosenblum, Esq.
John M. Mutkoski, Esq.
TESTA, HURWITZ & THIBEAULT, LLP
Oliver Street Tower
125 High Street
Boston, Massachusetts 02110
(617) 248-7000
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed
Maximum Proposed
Offering Maximum Amount of
Title of Securities Amount to be Price Per Aggregate Registration
to be Registered Registered Share Offering Price Fee(1)
------------------- ------------ --------- -------------- ------------
<S> <C> <C> <C> <C>
1998 Stock Plan 378,997(2) $ 0.220 $ 83,379.34 $ 22.01
Common Stock (par value $.01 per share) 178,199(2) $ 0.750 $ 133,649.25 $ 35.28
20,100(2) $ 2.625 $ 52,762.50 $ 13.93
706,153(2) $ 2.688 $1,898,139.26 $501.11
335(2) $ 2.990 $ 1,001.65 $ 0.26
1,005(2) $ 5.220 $ 5,246.10 $ 1.38
1,256(2) $ 7.460 $ 9,369.76 $ 2.47
6,277(2) $10.000 $ 62,770.00 $ 16.57
18,088(2) $22.390 $ 404,990.32 $106.92
321,901(3) $ 1.563 $ 503,131.26 $132.83
1999 Stock Plan(3) 118,473 $ 1.563 $ 185,173.30 $ 48.89
Common Stock (par value $.01 per share)
1999 Employee Stock Purchase Plan(3) 100,496 $ 1.563 $ 157,075.25 $ 41.47
Common Stock (par value $.01 per share)
TOTAL: 1,851,280 -- $3,496,687.99 $923.13
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</TABLE>
(1) Calculated pursuant to Section 6(b) of the Securities Act of 1933 (the
"Act"), as amended.
(2) Such shares are issuable upon the exercise of outstanding options with
fixed exercise prices. Pursuant to Rule 457(h), the aggregate offering
price and the fee have been computed upon the basis of the price at which
the options may be exercised. The offering price per share set forth for
such shares is the exercise price per share at which such options are
exercisable.
(3) The exercise price of these options is determined at the time of grant.
None of these shares being registered hereunder are subject to outstanding
options. Accordingly, the proposed maximum offering price per share of
$1.563, which is the average of the high and low prices of the Common Stock
of the Registrant reported on the Nasdaq National Market on May 31, 2000,
is set forth solely for purposes of calculating the filing fee pursuant to
Rule 457(c) and (h).
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
----------------
The documents containing the information specified in this Item 1 will be
sent or given to employees, directors or others as specified by Rule 428(b)(1).
In accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission") and the instructions to Form S-8, such documents
are not being filed with the Commission either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424.
Item 2. Registrant Information and Employee Plan Annual Information.
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The documents containing the information specified in this Item 2 will be
sent or given to employees as specified by Rule 428(b). In accordance with the
rules and regulations of the Commission and the instructions to Form S-8, such
documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents filed by the Registrant with the Commission are
incorporated by reference in this Registration Statement as of their respective
dates:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999 filed pursuant to the Securities Exchange Act of 1934
(the "Exchange Act") which contains audited financial statements for the
fiscal year ended December 31, 1999;
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 2000, filed pursuant to the Exchange Act; and
(c) The section entitled "Description of Registrant's Securities to be
Registered" contained in the Registrant's Registration Statement on Form
8-A pursuant to Section 12(g) of the Exchange Act, and incorporating by
reference the information contained in the Registrant's Registration
Statement on Form S-1, File No. 333-85139.
All documents subsequently filed with the Commission 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 herein 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 a part thereof from the date of filing of such documents.
Item 4. Description of Securities.
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Not applicable.
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Item 5. Interest of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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The Delaware General Corporation Law and the Company's Certificate of
Incorporation and By-Laws, as amended, provide for indemnification of the
Company's directors and officers for liabilities and expenses that they may
incur in such capacities.
The Company's Certificate of Incorporation provides that, to the maximum
extent permitted by the General Corporation Law of the State of Delaware, no
director of the Company shall be personally liable to the Company or to any of
its stockholders for monetary damages arising out of such director's breach of
fiduciary duty.
In addition, the Company's By-Laws provide that the Company shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative by reason of the fact that such
person is or was a director, trustee, partner, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise or non-profit entity, against all liability, losses,
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement by such person in connection with such action, suit or proceeding.
The Company shall only provide indemnification if such person acted in good
faith and in a manner reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceedings, if such person had no reasonable cause to believe his conduct was
unlawful.
The underwriting agreement, dated December 9, 1999, by and between the
Registrant and the underwriters listed therein provides that the underwriters
are obligated, under certain circumstances, to indemnify directors, officers and
controlling persons of the Registrant against certain liabilities, including
liabilities under the Act.
In addition, the Company maintains directors and officers liability
insurance for the benefit of its directors and certain of its officers.
Item 7. Exemption From Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
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Exhibit No. Description of Exhibit
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4.1 Specimen Certificate for shares of the Registrant's Common Stock
(filed as Exhibit 4.1 to the Registrant's Registration Statement
on Form S-1 (File No. 333-85139) and incorporated herein by
reference)
4.2 First Amended and Restated Certificate of Incorporation (filed as
Exhibit 3.1 to the Registrant's Annual Report on Form 10-K for
the fiscal year ended December 31, 1999 and incorporated herein
by reference)
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<PAGE>
4.3 Amended and Restated By-Laws of the Registrant (filed as Exhibit
3.2 to the Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1999 and incorporated herein by
reference)
4.4 1998 Stock Plan (filed herewith)
4.5 1999 Stock Plan (filed herewith)
4.6 1999 Employee Stock Purchase Plan (filed as Exhibit 10.3 to the
Registration Statement on Form S-1 (File No. 333-85139) and
incorporated herein by reference)
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP (filed herewith)
23.1 Consent of Testa, Hurwitz & Thibeault, LLP (included in Exhibit
5.1)
23.2 Consent of Arthur Andersen LLP (filed herewith)
24.1 Power of Attorney (included as part of the signature page of this
Registration Statement)
Item 9. Undertakings.
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(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;
(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; 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;
provided, however, that paragraphs (a) (1) (i) and (a) (1) (ii) do not
apply if the registration statement is on Form S-3, Form S-8 or Form F-3,
and 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
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
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(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.
(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.
(b) The undersigned Registrant hereby undertakes 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 Exchange
Act of 1934 that is incorporated by reference herein 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 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 Securities Act
of 1933 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 of 1933 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 Concord in the Commonwealth of Massachusetts, on this 6th day of
June, 2000.
MOTHERNATURE.COM, INC.
By: /s/ Michael I. Barach
--------------------------------
Michael I. Barach
Chief Executive Officer and President
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of MotherNature.com, Inc.,
hereby severally constitute and appoint Michael I. Barach and Michael L. Bayer,
and each of them singly, our true and lawful attorneys, with full power to them
and each of them singly, to sign for us in our names in the capacities indicated
below, any amendments to this Registration Statement on Form S-8 (including
post-effective amendments), and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, and generally to do all things in our names and on our behalf in our
capacities as officers and directors to enable MotherNature.com, Inc., to comply
with the provisions of the Securities Act of 1933, as amended, hereby ratifying
and confirming our signatures as they may be signed by our said attorneys, or
any of them, to said Registration Statement and all amendments thereto.
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 date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Michael I. Barach Chief Executive Officer, President and Director June 6, 2000
------------------------------
Michael I. Barach (Principal Executive Officer)
/s/ Michael L. Bayer Chief Financial Officer June 6, 2000
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Michael L. Bayer (Principal Financial and Accounting Officer)
/s/ Michael A. Greeley Director June 6, 2000
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Michael A. Greeley
/s/ Keith M. Kerman Director June 6, 2000
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Keith M. Kerman
/s/ Brent R. Knudsen Director June 6, 2000
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Brent R. Knudsen
/s/ Marc D. Poirier Director June 6, 2000
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Marc D. Poirier
/s/ Placido A. Corpora Director June 6, 2000
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Placido A. Corpora
</TABLE>
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INDEX TO EXHIBITS
Exhibit No. Description
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4.1 Specimen Certificate for shares of the Registrant's Common Stock
(filed as Exhibit 4.1 to the Registrant's Registration Statement
on Form S-1 (File No. 333-85139) and incorporated herein by
reference)
4.2 First Amended and Restated Certificate of Incorporation (filed as
Exhibit 3.1 to the Registrant's Annual Report on Form 10-K and
incorporated herein by reference)
4.3 Amended and Restated By-Laws of the Registrant (filed as Exhibit
3.2 to the Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1999 and incorporated herein by
reference)
4.4 1998 Stock Plan (filed herewith)
4.5 1999 Stock Plan (filed herewith)
4.6 1999 Employee Stock Purchase Plan (filed as Exhibit 10.3 to the
Registration Statement on Form S-1 (File No. 333-85139) and
incorporated herein by reference)
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP (filed herewith)
23.1 Consent of Testa, Hurwitz & Thibeault, LLP (included in Exhibit
5.1)
23.2 Consent of Arthur Andersen LLP (filed herewith)
24.1 Power of Attorney (included as part of the signature page of this
Registration Statement)
