As filed with the Securities and Exchange Commission on April 12, 2000
Registration No. 333- _________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
NET PERCEPTIONS, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 41-1844584
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
7901 FLYING CLOUD DRIVE, MINNEAPOLIS, MINN 55344
(Address of Principal Executive Offices) (Zip Code)
KNOWLEDGE DISCOVERY ONE, INC. 1996 STOCK OPTION/STOCK ISSUANCE PLAN
(Full Title of the Plan)
STEVEN J. SNYDER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
NET PERCEPTIONS, INC.
7901 FLYING CLOUD DRIVE
MINNEAPOLIS, MINNESOTA 55344
(Name and Address of Agent for Service)
(612) 903-9424
(Telephone Number, Including Area Code, of Agent for Service)
Copies to:
KENT A. COIT
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
ONE BEACON STREET
BOSTON, MASSACHUSETTS 02108
(617) 573-4800
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities to be Offering Aggregate Registration
to be Registered Price Offering Fee
Registered Per Share Price
- ------------------- ------------- --------------- --------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, 268,297 $19.75(1) $5,298,866(1) $1,398.90
$.0001 par value shares
- ------------------- ------------- --------------- --------------- ----------------
(1) Estimated solely for the purpose of calculating the registration fee,
and based on the average of the high and low prices of the Common
Stock on the Nasdaq National Market on April 11, 2000 in accordance
with Rules 457(c) and 457(h) under the Securities Act of 1933.
</TABLE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I
will be sent or given to employees as specified by Rule 428(b)(1). Such
documents are not being filed with the Securities and Exchange Commission
(the "Commission") either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424. Such documents
and the documents incorporated by reference in this Registration Statement
pursuant to Item 3 of Part II of this Form, taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the Securities
Act.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Registrant is subject to the informational and reporting
requirements of Sections 13(a), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and
Exchange Commission (the "Commission"). The following documents, which are
on file with the Commission, are incorporated in this Registration
Statement by reference:
(a) Annual Report on Form 10-K for the fiscal year ended
December 31, 1999 (SEC file number 000-25781 and filing
date of March 30, 2000).
(b) Proxy Statement on Schedule 14A for the 2000 Annual
Meeting of Stockholders (SEC file number 000-25781 and
filing date of April 6, 2000).
(c) Current Report on Form 8-K dated February 14, 2000 (SEC
file number 000-25781 and filing date of February 22,
2000).
(d) The description of Common Stock contained in Amendment
No. 3 to the Registration Statement on Form S-1 (SEC file
number 333-31230 and filing date of March 23, 2000).
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 shares of
Common Stock offered hereby have been sold or which deregisters all shares
of Common Stock then remaining unsold, shall be deemed to be incorporated
by reference herein and to be part hereof from the date of the 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 other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any 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
The legality of the Common Stock being offered hereby will be
passed for the Registrant by Skadden, Arps, Slate, Meagher & Flom LLP,
Boston, Massachusetts.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law authorizes
a court to award or a corporation's board of directors to grant
indemnification 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 1933 Act.
Article VII, Section 6, of the Registrant's Bylaws provides for mandatory
indemnification of its directors and officers and permissible
indemnification of employees and other agents to the maximum extent
permitted by the Delaware General Corporation Law. Article IX of the
Registrant's Certificate of Incorporation provides that, pursuant to
Delaware law, its directors shall not be liable for monetary damages for
breach of their fiduciary duty as directors to the Registrant and its
stockholders. This provision in the Certificate of Incorporation does not
eliminate the fiduciary duty of the directors, and, in appropriate
circumstances, equitable remedies such as injunctive or other forms of
non-monetary relief will remain available under Delaware law. In addition,
each director will continue to be subject to liability for breach of the
director's duty of loyalty to the Registrant for acts or omissions 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 unlawful under Delaware law. The provision also does not affect a
director's responsibilities under any other law, such as the federal
securities laws or state or federal environmental laws. The Registrant has
entered into Indemnification Agreements with its officers and directors.
The Indemnification Agreements provide the Registrant's officers and
directors with further indemnification to the maximum extent permitted by
the Delaware General Corporation Law.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit
Number Description
4.1* Specimen Certificate of Common Stock
4.2* Amended and Restated Investors Rights Agreement, dated
December 18, 1997, among Net Perceptions, Inc. and the
investors and founders named therein, as amended.
4.3** Registration Rights Agreement, dated February 14, 2000,
by and among Net Perceptions, Inc. and the stockholders
named therein.
5 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
23.1 Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP, independent
accountants
24 Power of Attorney (included in the signature pages of
this Registration Statement)
- --------
* Incorporated by reference to Net Perceptions' Registration Statement on
Form S-1 (SEC file number 333-71919 and filing date of February 5, 1999).
** Incorporated by reference to Net Perceptions' Registration Statement on
Form S-1 (SEC file number 333-31230 and filing date of February 28, 2000).
Item 9. Undertakings
1. 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 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 and 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 20 percent 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;
provided, however, that paragraphs (a) (1)
(i) and (a) (1) (ii) do not apply if this
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 Section 15(d) of the Securities
Exchange Act of 1934 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.
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 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 of 1934)
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.
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
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.
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,
hereunto duly authorized, in the City of Minneapolis, State of Minnesota,
on this 12th day of April, 2000.
NET PERCEPTIONS, INC.
By: /s/ Steven J. Snyder
-----------------------
Steven J. Snyder
President and
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Net Perceptions, Inc. hereby
severally constitute Steven J. Snyder and Thomas M. Donnelly and each of
them singly, our true and lawful attorneys with full power to them, and
each of them singly, to sign for us and in our names in the capacities
indicated below, the Registration Statement on Form S-8 filed herewith and
any and all subsequent amendments to said Registration Statement, and
generally to do all such things in our names and behalf in our capacities
as officers and directors to enable Net Perceptions, Inc., to comply with
all requirements of the Securities and Exchange Commission, hereby
ratifying and confirming our signatures as they may be signed by said
attorneys, or any of them, to said Registration Statement and any and all
amendments thereto.
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.
Signature Title Date
/s/ Steven J. Snyder President, Chief Executive April 12, 2000
- ------------------------------ Officer and Director
Steven J. Snyder (Principal Executive Officer)
/s/ Thomas M. Donnelly Chief Financial Officer and April 12, 2000
- ------------------------------ Secretary (Principal Financial
Thomas M. Donnelly and Accounting Officer)
/s/ John T. Riedl Director April 12, 2000
- ------------------------------
John T. Riedl
/s/ Ann L. Winblad Director April 12, 2000
- ------------------------------
Ann L. Winblad
/s/ Douglas J. Burgum Director April 12, 2000
- ------------------------------
Douglas J. Burgum
Director
- ------------------------------
William Lansing
EXHIBIT INDEX
Exhibit
Number Description
4.1* Specimen Certificate of Common Stock
4.2* Amended and Restated Investors Rights Agreement, dated
December 18, 1997, among Net Perceptions, Inc. and the
investors and founders named therein, as amended.
4.3** Registration Rights Agreement, dated February 14, 2000, by and
among Net Perceptions, Inc. and the stockholders named
therein.
5 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
23.1 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included
in Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP, independent accountants
24 Power of Attorney (included in the signature pages of this
Registration Statement)
- --------
* Incorporated by reference to Net Perceptions' Registration Statement on
Form S-1 (SEC file number 333-71919 and filing date of February 5, 1999).
** Incorporated by reference to Net Perceptions' Registration Statement on
Form S-1 (SEC file number 333-31230 and filing date of February 28, 2000).
EXHIBIT 5
[SASM&F Letterhead]
April 12, 2000
Net Perceptions, Inc.
7901 Flying Cloud Drive
Minneapolis, Minnesota 55344
Re: Registration Statement on Form S-8
Dear Ladies and Gentlemen:
We have acted as special counsel to Net Perceptions, Inc., a
Delaware corporation (the "Company"), in connection with the preparation of
a Registration Statement on Form S-8 (the "Registration Statement"), for
the purpose of registering with the Securities and Exchange Commission,
under the Securities Act of 1933, as amended (the "Act"), 268,297 shares
(the "Shares") of Common Stock, par value $.0001 per share of the Company
("Common Stock"), issuable upon the exercise of options granted under
Knowledge Discovery One, Inc.'s 1996 Stock Option/Stock Issuance Plan (the
"Plan") and assumed by the Company ("Options") pursuant to the Agreement
and Plan of Merger dated as of January 15, 2000 by and among the Company,
Kentucky Acquisition Corporation and Knowledge Discovery One, Inc. (the
"Merger Agreement").
This opinion is being furnished in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Act.
In connection with this opinion, we have examined and are
familiar with originals or copies, certified or otherwise identified to our
satisfaction, of (i) the Registration Statement, (ii) the Merger Agreement,
(iii) the Certificate of Merger dated February 14, 2000 filed with the
Delaware Secretary of State in connection with the merger provided for in
the Merger Agreement, (iv) the Plan, (v) the Amended and Restated
Certificate of Incorporation and the By-Laws of the Company, each as
currently in effect, (vi) a specimen certificate representing Common Stock,
in the form incorporated by reference as Exhibit 4.1 to the Registration
Statement (the "Specimen Certificate") and (vii) certain resolutions
adopted by the Board of Directors of the Company relating to the Merger
Agreement, the issuance of the Shares and certain related matters. We have
also examined such other documents, certificates and records as we have
deemed necessary or appropriate as a basis for the opinion set forth
herein. In our examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as certified, conformed or photostatic copies and
the authenticity of the originals of such copies. As to any facts material
to the opinion expressed herein which we have not independently established
or verified, we have relied upon statements and representations of officers
and other representatives of the Company and others.
We have also assumed that each option agreement setting forth
the terms of each Option (each, an "Option Agreement") is consistent with
the Plan and was duly authorized and validly executed and delivered by the
parties thereto, and that the consideration received by the Company for the
Shares delivered pursuant to the exercise of each such Option will be in an
amount at least equal to the par value of such Shares.
The opinion expressed herein is limited to the General
Corporation Law of the State of Delaware, and we express no opinion as to
the laws of any other jurisdiction.
Based upon and subject to the foregoing, we are of the opinion
that the Shares have been duly authorized for issuance and, when Shares
have been paid for and certificates therefor in the form of the Specimen
Certificate have been issued and delivered pursuant to the exercise, in
accordance with the terms of the Plan and the applicable Option Agreement,
of an Option duly granted under the Plan, such Shares will be validly
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement. In giving such consent, we do not hereby
admit that we are in the category of persons whose consent is required
under Section 7 of the Act or the Rules and Regulations promulgated
thereunder.
Very truly yours,
/s/ Skadden, Arps Slate, Meagher & Flom LLP
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 January 27,
2000, except as to Note 12, which is as of February 14, 2000,
relating to the financial statements, which appears in Net
Perceptions, Inc.'s Annual Report on Form 10-K for the year ended
December 31, 1999.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Minneapolis, Minnesota
April 6, 2000
