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As filed with the Securities and Exchange Commission on November 12, 1999
Registration No. 333-84535
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
BE FREE, INC.
(Exact name of issuer as specified in its charter)
Delaware 04-3303188
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
154 Crane Meadow Road, Marlborough, MA 01752
(Address of Principal Executive Offices)
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plan)
Gordon B. Hoffstein
President and Chief Executive Officer
BE FREE, INC.
154 Crane Meadow Road,
Marlborough, MA 01752
(Name and address of agent for service)
(508) 357-8888
(Telephone number, including area code, of agent for service)
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<CAPTION>
==========================================================================================================
Proposed maximum Proposed maximum Amount of
Title of securities Amount to offering price aggregate offering registration
to be registered be Registered per share price fee
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<S> <C> <C> <C> <C>
Common Stock 212,500 24.75(1) 5,259,375(1) 1,462.11
$.01 par value
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee,
and based upon the average of the high and low prices of the Common
Stock on the Nasdaq National Market on November 8, 1999 in accordance
with Rules 457(c) and (h) under the Securities Act of 1933.
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or given
to participants in the 1999 Employee Stock Purchase Plan of Be Free, Inc., a
Delaware corporation (the "Registrant") pursuant to Rule 428(b)(1).
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 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 following
documents, which are on file with the Securities and Exchange Commission, are
incorporated in this Registration Statement by reference:
(a) The Registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Exchange Act or either (1) the latest prospectus
filed pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the
"Securities Act"), that contains audited financial statements for the
Registrant's latest fiscal year for which such statements have been filed or (2)
the Registrant's effective registration statement on Form 10 or 20-F filed under
the Exchange Act containing audited financial statements for the Registrant's
latest fiscal year.
(b) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by the Registrant
document referred to in (a) above.
(c) The description of the Common Stock which is contained in
a registration statement filed under the Exchange Act, including any amendment
or report filed for the purpose of updating such description.
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 offered hereby have been
sold or which deregisters all shares then remaining unsold, shall be deemed to
be incorporated in this Registration Statement by reference and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
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Not applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of Delaware
provides that a corporation has the power to indemnify a director, officer,
employee or agent of the corporation and certain 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.
Article SEVENTH of the Registrant's Amended and Restated Certificate of
Incorporation (the "Certificate of Incorporation") provides that no director
shall be liable to the Registrant or its stockholders for monetary damages for
breach of his fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the Company or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
Delaware General Corporation Law or (iv) for any transaction in which the
director derived an improper personal benefit.
Article EIGHTH of the 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, or
threatened to be brought, against him by virtue of his position as, or his
agreement to become, a director or officer of the Registrant or by virtue of his
serving, or agreeing to serve, at the request of the Registrant, as a director,
officer, or trustee of, or in a similar capacity with a corporation, trust or
other
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enterprise, 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) incurred in connection with any action
by or in the right of the Registrant brought, or threatened to be brought,
against him by virtue of his position as, or his agreement to become, a director
or officer of the Registrant or by virtue of his serving, or agreeing to serve,
at the request of the Registrant, as a director, officer, or trustee of, or in a
similar capacity with a corporation, trust or other enterprise, 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 such 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 limitation, the dismissal of an action without prejudice or
the settlement of an action without admission of liability, 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 Board of Directors of the
Registrant or independent legal counsel determines that the applicable standard
of conduct required for indemnification has not been met. In the event of a
determination by the Board of Directors or independent legal counsel (who may be
regular legal counsel to 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 NINTH of the 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.
The Company has a Directors and Officers liability policy that insures the
Company's officers and directors against certain liabilities.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The Exhibit Index immediately preceding the exhibits is attached hereto and
incorporated herein by reference.
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Item 9. Undertakings
1. The 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 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.
(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 therein, 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 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 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 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, 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 Boston, Commonwealth of Massachusetts, on this 12th
day of November, 1999.
BE FREE, INC.
By: /s/ Gordon B. Hoffstein
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Gordon B. Hoffstein
President and Chief Executive Officer
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POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Be Free, Inc., hereby
severally constitute Gordon Hoffstein and Stephen M. Joseph, 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 Be
Free, 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 below by the following persons in the capacities and
on the dates indicated.
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<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Gordon B. Hoffstein President and Chief Executive Officer, November 12, 1999
- --------------------------- Director
Gordon Hoffstein
/s/ Samuel P. Gerace, Jr. Executive Vice President, November 12, 1999
- --------------------------- Research & Technology and
Samuel P. Gerace, Jr. Director
/s/ Stephen M. Joseph Chief Financial Officer, November 12, 1999
- --------------------------- Secretary and Treasurer
Stephen M. Joseph (Principal Financial Officer
and Principal Accounting Officer)
/s/ Ted R. Dintersmith Director November 12, 1999
- ---------------------------
Ted R. Dintersmith
/s/ W. Michael Humphreys Director November 12, 1999
- ---------------------------
W. Michael Humphreys
/s/ Jeffrey F. Rayport Director November 12, 1999
- ---------------------------
Jeffrey F. Rayport
/s/ Daniel J. Nova Director November 12, 1999
- ---------------------------
Daniel J. Nova
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Exhibit Index
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Exhibit
Number Description
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4.1 Amended and Restated Certificate of Incorporation of the Registrant.*
4.2 Amended and Restated By-Laws of the Registrant.*
5 Opinion of Hale and Dorr LLP.
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5).
23.2 Consent of PricewaterhouseCoopers, LLP.
24 Power of Attorney (included on the signature page of this Registration
Statement).
*Incorporated by reference to the Company's Registration Statement on Form S-1,
as amended, (File No. 333-84535) filed August 5, 1999.
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Exhibit 5
Hale and Dorr LLP
Counsellors at Law
60 State Street, Boston, Massachusetts 02109
617-526-6000 * FAX 617-526-5000
November 12, 1999
Be Free, Inc.
154 Crane Meadow Road
Marlborough, MA 01752
Re: Registration Statement on Form S-8
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Ladies and Gentlemen:
This opinion is furnished to you in connection with a Registration
Statement on Form S-8 (the "Registration Statement") filed with the Securities
and Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"), for the registration of 212,500 shares of
Common Stock, $.01 par value per share (the "Shares"), of Be Free, Inc., a
Delaware corporation (the "Company"), issuable under the Company's 1999 Employee
Stock Purchase Plan (the "Plan").
We have examined the Certificate of Incorporation and By-Laws of the
Company, each as amended and restated to date, and originals, or copies
certified to our satisfaction, of all pertinent records of the meetings of the
directors and stockholders of the Company, the Registration Statement and such
other documents relating to the Company as we have deemed material for the
purposes of this opinion.
In examination of the foregoing documents, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as copies, the authenticity of the originals of such latter documents and the
legal competence of all signatories to such documents.
We express no opinion herein as to the laws of any state or
jurisdiction other than the state laws of the Commonwealth of Massachusetts, the
Delaware General Corporation Law statute and the federal laws of the United
States of America.
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Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly authorized for issuance and the Shares, when issued and
paid for in accordance with the terms of the Plan, will be validly issued, fully
paid and nonassessable.
It is understood that this opinion is to be used only in connection
with the offer and sale of the Shares while the Registration Statement is in
effect.
Please note that we are opining only as to the matters expressly set
forth herein, and no opinion should be inferred as to any other matters.
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act. 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 Securities Act or the rules and
regulations of the Commission.
Very truly yours,
/s/ HALE AND DORR LLP
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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 July 2, 1999, except for
Footnote M which is dated October 6, 1999 relating to the financial statements
of Be Free, Inc. and its subsidiaries, which appears in Be Free, Inc.'s
Registration Statement on Form S-1 as amended.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Boston, Massachusetts
November 11, 1999
