<PAGE>
As filed with the Securities and Exchange Commission on October 29, 1999
Registration No. 333-84535
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SECURITIES AND EXCHANGE COMMISSION
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AMENDMENT NO. 5
to
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BE FREE, INC.
(Exact name of registrant as specified in its charter)
Delaware 7374 04-3303188
(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction Classification Code Number) Identification Number)
of incorporation or
organization)
154 Crane Meadow Road
Marlborough, Massachusetts 01752
(508) 357-8888
(Address, including zip code, telephone number, including area code, of
registrant's principal executive offices)
Gordon B. Hoffstein
President and Chief Executive Officer
BE FREE, INC.
154 Crane Meadow Road
Marlborough, Massachusetts 01752
(508) 357-8888
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
JAY E. BOTHWICK, ESQ. MARK H. BURNETT, ESQ.
DAVID A. WESTENBERG, ESQ. JOCELYN M. AREL, ESQ.
HALE AND DORR LLP TESTA, HURWITZ & THIBEAULT, LLP
60 State Street 125 High Street
Boston, Massachusetts 02109 Boston, Massachusetts 02110
Telephone: (617) 526-6000 Telephone: (617) 248-7000
Telecopy: (617) 526-5000 Telecopy: (617) 248-7100
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date hereof.
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act,
check the following box. [_]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [X]
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth the various expenses, all of which will be
borne by the Registrant, in connection with the sale and distribution of the
securities being registered, other than the underwriting discounts. All amounts
shown are estimates except for the Securities and Exchange Commission
registration fee and the NASD filing fee.
<TABLE>
<S> <C>
SEC registration fee.......................................... $ 16,625
NASD filing fee............................................... 6,940
Nasdaq National Market listing fee............................ 63,725
Blue Sky fees and expenses.................................... 5,000
Transfer Agent and Registrar fees............................. 15,000
Accounting fees and expenses.................................. 300,000
Legal fees and expenses....................................... 350,000
Printing and mailing expenses................................. 150,000
Miscellaneous................................................. 92,710
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Total....................................................... $1,000,000
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</TABLE>
Item 14. Indemnification of Directors and Officers
Article Seventh of the Registrant's Amended and Restated Certificate of
Incorporation provides that no director of the Registrant shall be personally
liable for any monetary damages for any breach of fiduciary duty as a director,
except to the extent that the Delaware General Corporation Law prohibits the
elimination or limitation of liability of directors for breach of fiduciary
duty.
Article Eighth of the Registrant's Amended and Restated Certificate of
Incorporation provides that a director or officer of the Registrant (a) shall
be indemnified by the Registrant against all expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement incurred in connection
with any litigation or other legal proceeding (other than an action by or in
the right of the Registrant) brought against him by virtue of his position as a
director or officer of the Registrant if he acted in good faith and in a manner
he reasonably believed to be in, or not opposed to, the best interests of the
Registrant, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful and (b) shall be
indemnified by the Registrant against all expenses (including attorneys' fees)
and amounts paid in settlement incurred in connection with any action by or in
the right of the Registrant brought against him by virtue of his position as a
director or officer of the Registrant if he acted in good faith and in a manner
he reasonably believed to be in, or not opposed to, the best interests of the
Registrant, except that no indemnification shall be made with respect to any
matter as to which such person shall have been adjudged to be liable to the
Registrant, unless a court determines that, despite such adjudication but in
view of all of the circumstances, he is entitled to indemnification of such
expenses. Notwithstanding the foregoing, to the extent that a director or
officer has been successful, on the merits or otherwise, including, without
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limitation, the dismissal of an action without prejudice, he is required to be
indemnified by the Registrant against all expenses (including attorneys' fees)
incurred in connection therewith. Expenses shall be advanced to a director or
officer at his request, provided that he undertakes to repay the amount
advanced if it is ultimately determined that he is not entitled to
indemnification for such expenses.
Indemnification is required to be made unless the Registrant determines that
the applicable standard of conduct required for indemnification has not been
met. In the event of a determination by the Registrant that the director or
officer did not meet the applicable standard of conduct required for
indemnification, or if the Registrant fails to make an indemnification payment
within 60 days after such payment is claimed by such person, such person is
permitted to petition the court to make an independent determination as to
whether such person is entitled to indemnification. As a condition precedent to
the right of indemnification, the director or officer must give the Registrant
notice of the action for which indemnity is sought and the Registrant has the
right to participate in such action or assume the defense thereof.
Article Eighth of the Registrant's Amended and Restated Certificate of
Incorporation further provides that the indemnification provided therein is not
exclusive, and provides that in the event that the Delaware General Corporation
Law is amended to expand the indemnification permitted to directors or officers
the Registrant must indemnify those persons to the fullest extent permitted by
such law as so amended.
Section 145 of the Delaware General Corporation Law provides that a
corporation has the power to indemnify a director, officer, employee or agent
of the corporation and other persons serving at the request of the corporation
in related capacities against amounts paid and expenses incurred in connection
with an action or proceeding to which he is or is threatened to be made a party
by reason of such position, if such person shall have acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, in any criminal proceeding, if such person
had no reasonable cause to believe his conduct was unlawful; provided that, in
the case of actions brought by or in the right of the corporation, no
indemnification shall be made with respect to any matter as to which such
person shall have been adjudged to be liable to the corporation unless and only
to the extent that the adjudicating court determines that such indemnification
is proper under the circumstances.
Under Section 7 of the Underwriting Agreement, the underwriters are
obligated, under circumstances, to indemnify directors and officers of the
Registrant against liabilities, including liabilities under the Securities Act.
Reference is made to the form of Underwriting Agreement to be filed as Exhibit
1 hereto.
The Registrant carries Directors and Officers liability insurance. Through
an agreement dated as of March 31, 1999 with Daniel J. Nova, and agreements
with Ted R. Dintersmith, W. Michael Humphreys and Samuel P. Gerace, Jr. dated
as of August 28, 1999 the Registrant has agreed to indemnify each director
against litigation risks and expenses arising out of his service to the
Registrant.
Finally, Ted Dintersmith, a director of the Registrant, is indemnified by
Charles River Partnership VIII for actions he takes on its behalf.
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Item 15. Recent Sales of Unregistered Securities
Set forth is information regarding shares of common stock and preferred
stock issued, and warrants issued and options granted by the Company since
January 1, 1996 (without giving effect to the Company's 1-for-2 reverse stock
split to be effected prior to the closing of this offering). Further included
is the consideration, if any, received by the Company for such shares, warrants
and options and information relating to the section of the Securities Act of
1933, as amended (the "Securities Act"), or rule of the Securities and Exchange
Commission under which exemption was claimed.
On August 28, 1998, we issued 399 shares of Freedom of Information, Inc.
("FOI") (the immediate predecessor of Be Free) common stock and $6,176,881 in
promissory notes (the "Redemption Notes") of FOI in consideration for the
exchange of all of the shares of Be Free, Inc. (an unrelated corporation, "Old
Be Free") and PCX Systems, Inc. by shareholders of such entities.
On August 28, 1998 we issued a total of 10,500,000 shares of Series A
Preferred Stock to five private investors (including three venture capitalist
firms, a bank and an individual investor) for an aggregate capital contribution
of $10,500,000 and warrants to purchase a total of 3,465,000 shares of common
stock at a purchase price of $1.50 per share.
On September 29, 1998, we issued 100,000 shares of Series A Convertible
Preferred Stock to Comdisco, Inc. for an aggregate capital contribution of
$100,000 and a warrant to purchase 33,000 shares of common stock at a purchase
price of $1.50 per share.
On September 29, 1998, we issued to Comdisco two warrants, one to purchase
100,000 shares of Series A Convertible Preferred Stock at a purchase price of
$1.00 and the other to purchase up to 600,000 shares of Series A Convertible
Preferred Stock at a purchase price of $1.00 per share. We issued these
warrants as partial consideration for certain financing transactions between
Comdisco and the Company.
On March 31, 1999, we issued a total of 13,196,522 shares of Series B
Convertible Preferred Stock to sixteen private investors for an aggregate
capital contribution of $24,999,888.06.
At various times since November 1998, we issued 5,347,050 shares of
restricted common stock, at purchase prices of $0.15 and $0.35 per share and
options to purchase 2,638,791 shares of common stock to employees at exercise
prices ranging from $0.15 to $4.41 per share, to consultants, advisors and a
director pursuant to our 1998 Stock Incentive Plan.
No underwriters were involved in the foregoing sale of securities. Such
sales were made in reliance upon an exemption from the registration provisions
of the Securities Act set forth in Section 4(2) thereof relative to sales by an
issuer not involving any public offering or the rules and regulations
thereunder, or, in the case of restricted common stock or options to purchase
common stock, Rule 701 under the Securities Act. All foregoing securities are
deemed restricted securities for the purpose of the Securities Act.
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Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits
<TABLE>
<CAPTION>
Exhibit
No. Description
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*****1 Form of Underwriting Agreement.
***3.1 Restated Certificate of Incorporation of the Registrant, as amended
and as currently in effect.
***3.2 Form of Amended and Restated Certificate of Incorporation of the
Registrant to be filed on or immediately subsequent to the date of
the closing of the Offering contemplated by this Registration
Statement.
**3.3 By-Laws of the Registrant, as amended to date
***3.4 Form of Amended and Restated By-Laws of the Registrant to be
effective on the date of the closing of the Offering.
*****3.5 Certificate of Amendment, dated October 6, 1999
******4 Specimen certificate for shares of Common Stock, $.01 par value per
share, of the Registrant.
**5 Form of Opinion of Hale and Dorr LLP.
**10.1 1998 Stock Incentive Plan
**10.2 Stock Purchase and Shareholders Agreement, as amended, dated as of
August 28, 1998
**10.3 Form of Warrant dated as of August 28, 1998
**10.4 Stock Purchase Agreement, as amended, dated as of September 29,
1998
**10.5 Warrant Certificate for the purchase of shares of common stock
issued to Comdisco, Inc.
**10.6 Warrant Certificate A-1 for the purchase of shares of Series A
Preferred Stock issued to Comdisco, Inc.
**10.7 Warrant Certificate A-2 for the purchase of shares of Series A
Preferred Stock issued to Comdisco, Inc.
**10.8 Subordinated Loan and Security Agreement dated as of September 29,
1998
**10.9 Registration Rights Agreement dated as of March 31, 1999
**10.10 Employment Agreement with Samuel P. Gerace, Jr., dated August 28,
1998
**10.11 Employment Agreement with Thomas A. Gerace dated August 28, 1998
**10.12 Lease dated as of November 9, 1998 with Southwestern Pennsylvania
Corporation
**10.13 Lease dated October 20, 1998 with LSOF Pooled Equity L.P.
+10.14 License and Services Agreement, effective January 13, 1999, with
GeoCites
+10.15 BFAST Service Order Form, as amended, with barnesandnoble.com, Inc.
dated January 31, 1998
**10.16 Director Indemnification Agreement dated as of March 31, 1999 with
Dan Nova
**10.17 Form of Indemnification Agreement dated August 28, 1998
**21 List of Subsidiaries
*****23.1 Consent of Independent Accountants.
**23.2 Consent of Hale and Dorr LLP (included in Exhibit 5).
****23.3 Consent of Neilsen/NetRatings
****23.4 Consent of Jupiter Communications
**24 Power of Attorney (see page II-5)
</TABLE>
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+ Confidential materials omitted and filed separately with the Securities and
Exchange Commission pursuant to an Application for Confidential Treatment.
** Filed with the initial filing of the Registration Statement on August 5,
1999.
*** Filed with the filing of Amendment No. 1 to the Registration Statement on
September 14, 1999.
**** Filed with the filing of Amendment No. 2 to the Registration Statement on
September 29, 1999.
***** Filed with the filing of Amendment No. 3 to the Registration Statement on
October 8, 1999.
****** Filed with the filing of Amendment No. 4 to the Registration Statement
on October 22, 1999.
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Item 17. Undertakings
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 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.
The undersigned Registrant hereby undertakes to provide to the underwriters
at the closing specified in the underwriting agreement, certificates in such
denominations and registered in such names as required by the underwriters to
permit prompt delivery to each purchaser.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus 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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SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Amendment to this Registration Statement on
Form S-1 to be signed on its behalf by the undersigned, thereunto duly
authorized, in Boston, Massachusetts, on this 29th day of October, 1999.
Be Free, Inc.
By: /s/ Gordon B. Hoffstein
Gordon B. Hoffstein
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<S> <C>
Signature Title Date
/s/ Gordon B. Hoffstein President and Chief October 29, 1999
- --------------------------------- Executive Officer
Gordon B. Hoffstein (Principal Executive
Officer) and Director
* Executive Vice October 29, 1999
- --------------------------------- President, Research &
Samuel P. Gerace, Jr. Technology and
Director
* Chief Financial October 29, 1999
- --------------------------------- Officer, Secretary and
Stephen M. Joseph Treasurer (Principal
Financial and
Accounting Officer)
* Director October 29, 1999
- ---------------------------------
Ted R. Dintersmith
* Director October 29, 1999
- ---------------------------------
W. Michael Humphreys
* Director October 29, 1999
- ---------------------------------
Jeffrey Rayport
Director
- ---------------------------------
Daniel Nova
*By: /s/ Gordon B. Hoffstein
--------------------------------
Gordon B. Hoffstein
Attorney-in-Fact
</TABLE>
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Exhibit Index
<TABLE>
<CAPTION>
Exhibit
No. Description
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<C> <S>
*****1 Form of Underwriting Agreement.
***3.1 Restated Certificate of Incorporation of the Registrant, as amended
and as currently in effect.
***3.2 Form of Amended and Restated Certificate of Incorporation of the
Registrant to be filed on or immediately subsequent to the date of
the closing of the Offering contemplated by this Registration
Statement.
**3.3 By-Laws of the Registrant, as amended to date
***3.4 Form of Amended and Restated By-Laws of the Registrant to be
effective on the date of the closing of the Offering.
*****3.5 Certificate of Amendment, dated October 6, 1999
******4 Specimen certificate for shares of Common Stock, $.01 par value per
share, of the Registrant.
**5 Form of Opinion of Hale and Dorr LLP.
**10.1 1998 Stock Incentive Plan
**10.2 Stock Purchase and Shareholders Agreement, as amended, dated as of
August 28, 1998
**10.3 Form of Warrant dated as of August 28, 1998
**10.4 Stock Purchase Agreement, as amended, dated as of September 29,
1998
**10.5 Warrant Certificate for the purchase of shares of common stock
issued to Comdisco, Inc.
**10.6 Warrant Certificate A-1 for the purchase of shares of Series A
Preferred Stock issued to Comdisco, Inc.
**10.7 Warrant Certificate A-2 for the purchase of shares of Series A
Preferred Stock issued to Comdisco, Inc.
**10.8 Subordinated Loan and Security Agreement dated as of September 29,
1998
**10.9 Registration Rights Agreement dated as of March 31, 1999
**10.10 Employment Agreement with Samuel P. Gerace, Jr., dated August 28,
1998
**10.11 Employment Agreement with Thomas A. Gerace dated August 28, 1998
**10.12 Lease dated as of November 9, 1998 with Southwestern Pennsylvania
Corporation
**10.13 Lease dated October 20, 1998 with LSOF Pooled Equity L.P.
+10.14 License and Services Agreement, effective January 13, 1999, with
GeoCites
+10.15 BFAST Service Order Form, as amended, with barnesandnoble.com, Inc.
dated January 31, 1998
**10.16 Director Indemnification Agreement dated as of March 31, 1999 with
Dan Nova
**10.17 Form of Indemnification Agreement dated August 28, 1998
**21 List of Subsidiaries
*****23.1 Consent of Independent Accountants.
**23.2 Consent of Hale and Dorr LLP (included in Exhibit 5).
****23.3 Consent of Nielson/NetRatings
****23.4 Consent of Jupiter Communications
**24 Power of Attorney (see page II-5)
</TABLE>
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+ Confidential materials omitted and filed separately with the Securities
and Exchange Commission pursuant to an Application for Confidential
Treatment.
**Filed with the initial filing of the Registration Statement on August 5,
1999.
***Filed with the filing of Amendment No. 1 to the Registration Statement on
September 14, 1999.
****Filed with the filing of Amendment No. 2 to the Registration Statement on
September 29, 1999.
*****Filed with the filing of Amendment No. 3 to the Registration Statement on
October 8, 1999.
******Filed with the filing of Amendment No. 4 to the Registration Statement on
October 22, 1999.
<PAGE>
Exhibit 10.14
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
GEOCITIES AFFILIATES PROGRAM
LICENSE AND SERVICES AGREEMENT
This License and Services Agreement ("Agreement") is entered into by and between
GeoCities ("GeoCities"), located at 4499 Glencoe Avenue, Marina del Rey, CA
90292, and Be Free, Inc. ("Be Free"), located at 201 Boston Post Road West,
Marlborough, MA 01752, effective as of January 13, 1999 ("Effective Date").
1. CERTAIN DEFINITIONS.
"Affiliate(s)" means an individual or legal entity that (a) has a personal Web
site hosted by any Web-based community, Internet service provider or Web hosting
service provider either at no charge or for a nominal fee, and (b) has entered
into an agreement pertaining to membership in the GeoCities Affiliates Program.
"Be Free Behavioral Targeting Technology" means Be Free's proprietary technology
for compiling Visitors' historical behavioral profiles, which profiles may be
used in selecting advertising or promotion strategies designed to maximize
Visitor purchases on the Internet.
"GeoCities Affiliates Program" means a network of participating Affiliates and
Merchants which: (a) enables Affiliates to generate hypertext links ("Affiliate
Links") from such Affiliate's Web pages (each, an "Affiliate Page") to
participating Merchant Sites, (b) encourages Visitors to interact with such
Merchant Sites including, without limitation, making purchases and accessing
content on the Merchant Sites, and (c) enables Affiliates to receive
compensation.
"GeoCities Data" means any and all information or data delivered to Be Free by
GeoCities in connection with the GeoCities Affiliates Program concerning
GeoCities members, Affiliates and/or Merchants.
"Deliverable(s)" means the Licensed Materials and the elements or functionality
described in Exhibit A.
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"Existing Program" means an affiliates program (other than the GeoCities
Affiliates Program): established and operated by or on behalf of a merchant
prior to integration of the merchant into the GeoCities Affiliates Program.
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