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As filed with the Securities and Exchange Commission on October 27, 1999
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
WOMEN.COM NETWORKS, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 13-4059516
(State of Incorporation) (I.R.S. Employer Identification No.)
1820 GATEWAY DRIVE, SUITE 100
SAN MATEO, CALIFORNIA 94404
(650) 378-6500
(Address of principal executive offices)
AMENDED AND RESTATED 1994 STOCK OPTION PLAN
AMENDED AND RESTATED 1998 EQUITY INCENTIVE PLAN
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
MARLEEN MCDANIEL
CHAIRPERSON OF THE BOARD, CHIEF EXECUTIVE OFFICER AND PRESIDENT
1820 GATEWAY DRIVE, SUITE 100
SAN MATEO, CALIFORNIA 94404
(650) 378-6500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
MARK P. TANOURY
JOHN M. GESCHKE
DAVID E. LILLEVAND
COOLEY GODWARD LLP
3000 SAND HILL ROAD
BUILDING 3, SUITE 230
MENLO PARK, CA 94025
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECUITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED SHARE(1) PRICE(1) REGISTRATION FEE
=========================================================================================================
<S> <C> <C> <C> <C>
Stock Options and (See Notes to
Common Stock (par 8,816,385 Calculation of
value $.001) shares Registration Fee) $74,007,291 $20,574
=========================================================================================================
</TABLE>
(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 Women.com Networks,
Inc.'s (i) Amended and Restated 1994 Stock Option Plan and (ii) Amended
and Restated 1998 Equity Incentive Plan and (b) the average of the high
and low prices of Registrant's Common Stock on October 21, 1999 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 Amended and Restated
1994 Stock Option and Amended and
Restated 1998 Equity Incentive Plan 5,317,279 $ 3.96 21,056,425
Shares reserved for future
issuance pursuant to the
Amended and Restated 1998
Equity Incentive Plan 2,499,106 $ 15.81 39,510,866
Shares reserved for future
issuance pursuant to the
Employee Stock Purchase Plan 1,000,000 $ 13.44 13,440,000
Proposed Maximum Offering Price $ 74,007,289
Registration Fee $ 20,574
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</TABLE>
1.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Women.com Networks, Inc. (the
"Company") with the Securities and Exchange Commission are incorporated by
reference into this Registration Statement:
(a) The Company's prospectus filed pursuant to Rule 424(b) under the
Securities Act of 1933, as amended (the "Securities Act"), on October 15, 1999
(No. 333-78363).
(b) The description of the Company's Common Stock which is contained in
the Registration Statement on Form 8-A filed May 13, 1999, 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 ("Cooley Godward"). An
investment partnership comprised of members and senior associates of Cooley
Godward beneficially owns 19,791 shares of the Registrant's Common Stock and
individual members and associates of Cooley Godward beneficially own an
aggregate of 2,700 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 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 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.
2.
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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 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
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
<S> <C>
4.1* 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* Amended and Restated 1998 Equity Incentive Plan.
99.2* Employee Stock Purchase Plan.
99.3* Amended and Restated 1994 Stock Option Plan.
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</TABLE>
* Documents incorporated by reference from the Company's Registration Statement
on Form S-1, as amended (333-78363), filed with the SEC on May 13, 1999.
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
3.
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(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)(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 San Mateo, State of California, on October 27, 1999.
WOMEN.COM NETWORKS, INC.
By /s/ Marleen McDaniel
-----------------------------------
Marleen McDaniel
Title:Chairperson of the Board, Chief
Executive Officer and President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Marleen McDaniel, 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/ Marleen McDaniel Chairperson of the Board, Chief October 27, 1999
----------------------------- Executive Officer and President
Marleen McDaniel (Principal Executive Officer)
/s/ Michael Perry Chief Financial Officer October 27, 1999
----------------------------- (Principal Financial and
Michael Perry Accounting Officer)
/s/ Natalie Egleston Director October 27, 1999
-----------------------------
Natalie Egleston
/s/ Barry Weinman Director October 27, 1999
-----------------------------
Barry Weinman
/s/ William Miller Director October 27, 1999
-----------------------------
William Miller
/s/ Cathleen Black Director October 27, 1999
-----------------------------
Cathleen Black
</TABLE>
5.
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<TABLE>
<S> <C> <C>
/s/ Alfred Sikes Director October 27, 1999
-----------------------------
Alfred Sikes
/s/ Nancy Lindemeyer Director October 27, 1999
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Nancy Lindemeyer
/s/ Mark Miller Director October 27, 1999
-----------------------------
Mark Miller
/s/ James Asher Director October 27, 1999
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James Asher
/s/ David Galloway Director October 27, 1999
-----------------------------
David Galloway
</TABLE>
6.
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
<S> <C>
4.1* 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* Amended and Restated 1998 Equity Incentive Plan.
99.2* Employee Stock Purchase Plan.
99.3* Amended and Restated 1994 Stock Option Plan.
</TABLE>
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* Documents incorporated by reference from the Company's Registration Statement
on Form S-1, as amended (333-78363), filed with the SEC on May 13, 1999.
7.
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[Cooley Godward LLP Letterhead]
October 27, 1999 Exhibit 5.1
Women.com Networks, Inc.
1820 Gateway Drive, Suite 100
San Mateo, California 94404
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Women.com Networks, 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 8,816,385
shares of the Company's Common Stock, $.001 par value (the "Shares"), with
respect to (a) 5,317,279 of the Shares issuable pursuant to outstanding options
under its Amended and Restated 1994 Stock Option Plan (the "1994 Plan") and the
Amended and Restated 1998 Equity Incentive Plan (the "1998 Plan"), (b) 2,499,106
of the Shares reserved for future issuance under the 1998 Plan, and (c)
1,000,000 of the Shares issuable pursuant to the Employee Stock Purchase Plan
("Purchase Plan").
In connection with this opinion, we have examined the Registration Statement,
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 1994 Plan, 1998
Plan, Purchase Plan and the Registration Statement, will be validly issued,
fully paid, and nonassessable.
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
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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 Women.com Networks, Inc. of our report dated May 7,
1999, except for Note 1 as to which the date is September 27, 1999 and Note 13
as to which the date is October 14, 1999, relating to the financial statements,
which appears in the prospectus filed pursuant to Rule 424(b) on October 15,
1999 (No. 333-78363).
PricewaterhouseCoopers LLP
San Jose, California
October 25, 1999
