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As filed with the Securities and Exchange Commission on March 31, 2000
================================================================================
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)
TRIVIDA CORPORATION
1998 EQUITY INCENTIVE 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
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
$.01 par value 566,592 $7.78 $4,408,086 $1,164
==============================================================================================
</TABLE>
(1) The Proposed Maximum Offering Price Per Share was estimated pursuant to
Rule 457(h) under which Rule the per share price of options to purchase
stock under an employee stock option plan may be estimated by reference to
the exercise price of such options. The weighted average exercise price of
the 566,592 shares subject to outstanding options is $7.78 per share.
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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 pursuant to Rule 428(b)(1) to participants in the 1998 Equity Incentive
Plan of TriVida Corporation ("TriVida"), assumed by Be Free, Inc. (the
"Registrant") in connection with its acquisition of TriVida on February 29,
2000.
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 Annual Report on Form 10-K for the fiscal
year ended December 31, 1999.
(b) Current Reports on Form 8-K dated March 14, 2000 and
February 17, 2000.
(c) The description of the Common Stock which is contained in the
Registrant's Form 8-A/A dated September 17, 1999, 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
Not applicable.
Item 6. Indemnification of Directors and Officers
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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 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,
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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.
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
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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 31st
day of March, 2000.
BE FREE, INC.
By: /s/ Gordon B. Hoffstein
------------------------------------
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 B. 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.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Gordon B. Hoffstein President and Chief Executive Officer, March 31, 2000
- ------------------------- Director
Gordon B. Hoffstein
/s/ Samuel P. Gerace, Jr. Executive Vice President, March 31, 2000
- ------------------------- Research & Technology and
Samuel P. Gerace, Jr. Director
/s/ Stephen M. Joseph Chief Financial Officer, March 31, 2000
- ------------------------- Secretary and Treasurer
Stephen M. Joseph (Principal Financial Officer
and Principal Accounting Officer)
/s/ Ted R. Dintersmith Director March 31, 2000
- -------------------------
Ted R. Dintersmith
/s/ W. Michael Humphreys Director March 31, 2000
- -------------------------
W. Michael Humphreys
/s/ Jeffrey F. Rayport Director March 31, 2000
- -------------------------
Jeffrey F. Rayport
Director March 31, 2000
- -------------------------
Daniel J. Nova
/s/ Kathleen Biro Director March 31, 2000
- -------------------------
Kathleen Biro
</TABLE>
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Exhibit Index
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Exhibit
Number Description
- ------ -----------
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.
23.3 Consent of Ernst & Young LLP.
24 Power of Attorney (included on the signature page of this Registration
Statement).
99 TriVida Corporation 1998 Equity Incentive Plan **
*Incorporated by reference to the Company's Registration Statement on Form S-1,
as amended, (File No. 333-84535) filed August 5, 1999.
**Incorporated by reference to Exhibit 10.18 to the Company's Registration
Statement on Form S-1, as amended, (File No. 333-31916) filed March 8, 2000.
<PAGE>
Hale and Dorr LLP
Counsellors at Law
60 State Street, Boston, Massachusetts 02109
617-526-6000 * FAX 617-526-5000
March 31, 2000
Be Free, Inc.
154 Crane Meadow Road
Marlborough, MA 01752
Re: Registration Statement on Form S-8
----------------------------------
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 566,592 shares of Common
Stock, $.01 par value per share (the "Shares"), of Be Free, Inc., a Delaware
corporation (the "Company"), issuable under the TriVida Corporation 1998 Equity
Incentive Plan (the "Plan") as assumed by the Company.
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.
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.
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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 February 8, 2000, except
for Footnote N which is dated March 8, 2000 relating to the financial statements
of Be Free, Inc. and its subsidiaries, which appears in Be Free, Inc.'s Annual
Report on Form 10-K for the year ended December 31, 1999.
PricewaterhouseCoopers LLP
Boston, Massachusetts
March 31, 2000
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Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement on Form S-8 pertaining to the TriVida Corporation 1998 Equity
Incentive Plan of our report dated October 15, 1999, with respect to the
financial statements of TriVida Corporation (A Development Stage Company)
included in Be Free's Current Report on Form 8-K dated March 14, 2000 filed with
the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Los Angeles, California
March 30, 2000
