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As filed with the Securities and Exchange Commission on October 22, 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
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bamboo.com, Inc.
(Exact name of Registrant as specified in its charter)
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<TABLE>
<CAPTION>
<S> <C> <C>
Delaware 7379 52-2129710
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
124 University Avenue
Palo Alto, CA 94301
(650) 325-6787
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
AMENDED AND RESTATED 1998 EMPLOYEE, DIRECTOR AND CONSULTANT STOCK
PLAN 1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plans)
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LEONARD B. MCCURDY
Chairman and Chief Executive Officer
bamboo.com, Inc.
124 University Avenue
Palo Alto, CA 94301
(650) 325-6787
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
MARIO M. ROSATI, Esq.
ISSAC J. VAUGHN, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94301
(650) 493-9300
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Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
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 of
1933, check the following box. [x]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Amount to be Proposed Maximum Proposed Maximum Amount of
Title of Each Class of Securities to be Registered Registered Offering Price Aggregate Offering Registration
Price Per Share Fee
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<S> <C> <C> <C> <C>
Amended and Restated 1998 Employee, Director
and Consultant Stock Plan
Common Stock, $0.001 par value
(currently outstanding options) (1)..................... 5,298,820 shares $0.8159 $ 4,323,307.24 $1,201.88
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Amended and Restated 1998 Employee, Director
and Consultant Stock Plan
Common Stock, $0.001 par value
(options available for future grant) (2)................ 1,314,155 shares $ 15.38 $20,211,703.90 $5,618.85
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Total Amended and Restated 1998 Employee, Director and
Consultant Stock Plan shares registered................ 6,612,975 shares $24,535,011.14 $6,820.73
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1999 Employee Stock Purchase Plan
Common Stock, $0.001 par value (3)...................... 700,000 shares $ 13.07 $ 9,149,000.00 $2,543.42
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Total Registration Fees $9,364.15
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(1) The computation is based upon the weighted average exercise price per share
of $0.8159 as to 5,298,820 outstanding but unexercised options to purchase
Common Stock under the Amended and Restated 1998 Employee, Director and
Consultant Stock Plan (the "Currently Outstanding Options").
(2) The Proposed Maximum Offering Price Per Share has been estimated in
accordance with Rule 457(h) under the Securities Act of 1933 as to the
remaining 1,314,155 shares of Common Stock authorized for issuance pursuant
to the Amended and Restated 1998 Employee, Director and Consultant Stock
Plan, solely for the purpose of calculating the registration fee. No options
have been granted with respect to such shares. The computation is based upon
the average of the high and low price of the Common Stock as reported on the
Nasdaq National Market on October 20, 1999 because the price at which the
options to be granted in the future may be exercised is not currently
determinable.
(3) The Proposed Maximum Offering Price Per Share has been estimated in
accordance with Rule 457(h) under the Securities Act of 1933 solely for the
purpose of calculating the registration fee. The computation is based upon
85% (see explanation in following sentence) of the average of the high and
low price of the Common Stock as reported on the Nasdaq National Market on
October 20, 1999 because the price at which the options to be granted in the
future may be exercised is not currently determinable. Pursuant to the 1999
Employee Stock Purchase Plan, which plan is incorporated by reference
herein, the Purchase Price of a share of Common Stock shall mean an amount
equal to 85% of the Fair Market Value of a share of Common Stock on the
Enrollment Date or the Exercise Date, whichever is lower.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Information Incorporated by Reference.
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The following documents and information previously filed with the
Securities and Exchange Commission are hereby incorporated by reference:
(a) The audited financial statements for the Registrant's fiscal year ended
December 31, 1998 contained in the Prospectus, dated August 25, 1999,
filed pursuant to Rule 424(b)(4) under the Securities Act of 1933 on
August 26, 1999.
(b) The description of the Common Stock of the Registrant that is contained
in the Registration Statement on Form 8-A filed pursuant to Section 12
of the Exchange Act on June 14, 1999.
(c) All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act subsequent to the filing of
this Registration Statement and 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 in the Registration Statement and to be
part hereof from the date of filing of such documents.
Item 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Mario M. Rosati, member of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, is the Secretary of the Registrant. Wilson Sonsini Goodrich &
Rosati is corporate counsel to the Registrant. WS Investment Company 98B, WS
Investment Company 99A, Mario Rosati, a member of Wilson Sonsini Goodrich &
Rosati, P.C. and individuals and entities affiliated with Wilson Sonsini
Goodrich & Rosati, P.C. beneficially own an aggregate of 179,508 shares of
bamboo.com's Common Stock.
Item 6. Indemnification of Directors and Officers.
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The Registrant has adopted provisions in its Certificate of Incorporation
that eliminate the personal liability of its directors and officers for monetary
damages arising from a breach of their fiduciary duties in certain circumstances
to the fullest extent permitted by law and authorizes the Registrant to
indemnify its directors and officers to the fullest extent permitted by law.
Such limitation of liability does not affect the availability of equitable
remedies such as injunctive relief or rescission.
The Registrant's Bylaws provide that the Registrant shall indemnify its
directors and officers to the fullest extent permitted by the General
Corporation Law of Delaware, including circumstances in which indemnification is
otherwise discretionary under Delaware law. Section 145 of the General
Corporation Law of Delaware provides for the indemnification of officers,
directors and other corporate agents in terms sufficiently broad to indemnify
such persons, under certain circumstances, for certain liabilities (including
reimbursement of expenses incurred) arising under the Securities Act of 1933
(the "Securities Act").
Item 7. Exemption from Registration Claimed.
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II-1
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Not applicable.
Item 8. Exhibits.
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The Exhibits listed on the accompanying Index to Exhibits are filed as part
hereof, or incorporated by reference into, this Registration Statement. (See
Exhibit Index below).
Item 9. Undertakings.
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(a) 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 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.
(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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities 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 an initial bona fide offering thereof.
(c) 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 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 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, thereunto duly
authorized in the City of Palo Alto, State of California on October 21, 1999.
BAMBOO.COM, INC.
By: /s/ Randall I. Bresee
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Randall I. Bresee
Chief Financial Officer and Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Leonard B. McCurdy, Kevin B. McCurdy and
Randall I. Bresee, jointly and severally, his attorneys-in-fact, each with the
power of substitution, for him in any and all capacities, to sign any amendments
to this Registration Statement on Form S-8, and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ LEONARD B. MCCURDY Director, Chairman and Chief Executive October 21, 1999
- ----------------------------------- Officer*
Leonard B. McCurdy
/s/ KEVIN B. MCCURDY Director and Executive Vice President* October 21, 1999
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Kevin B. McCurdy
/s/ RANDALL I. BRESEE Chief Financial Officer October 21, 1999
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Randall I. Bresee
/s/ DUNCAN FORTIER Director* October 21, 1999
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Duncan Fortier
/s/ JOHN MORAGNE Director* October 21, 1999
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John Moragne
/s/ PHILIP SANDERSON Director* October 21, 1999
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Philip Sanderson
</TABLE>
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* The employee benefit plans being registered pursuant to this Registration
Statement are subject to administration by the Board of Directors of the
Registrant.
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INDEX TO EXHIBITS
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Sequentially
Exhibit Number Exhibit Document Numbered Page
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<S> <C> <C>
4.1* Certificate of Incorporation of Registrant
4.2* Bylaws of Registrant
4.3* Amended and Restated 1998 Employee, Director and Consultant Stock Plan
4.4* 1999 Employee Stock Purchase Plan
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation, as
to the legality of securities being registered (Counsel to the Registrant)
23.1 Consent of PricewaterhouseCoopers LLP (Independent Accountants)
23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation
(contained in Exhibit 5.1 hereto)
24.1 Power of Attorney (see page II-3)
</TABLE>
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* Incorporated by reference to the Company's Registration Statement on Form S-1
(File No. 333-80639), effective August 25, 1999.
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<PAGE>
[LETTERHEAD OF WILSON SONSINI GOODRICH & ROSATI]
Exhibit 5.1
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October 21, 1999
bamboo.com, Inc.
124 University Avenue
Palo Alto, CA 94301
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on or about October 21, 1999 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of the Amended and Restated 1998 Employee,
Director and Consultant Stock Plan (as to 6,612,975 shares) and of the 1999
Employee Stock Purchase Plan (as to 700,000 shares) (collectively, the "Plans"
and the "Shares" as appropriate). As legal counsel for bamboo.com, Inc., we
have examined the proceedings taken and are familiar with the proceedings
proposed to be taken by you in connection with the issuance and sale of the
Shares pursuant to the Plans.
It is our opinion that the Shares, when issued and sold in the manner
described in the Plans and pursuant to the agreement that accompanies each grant
under the Plans, will be legally and validly issued, fully-paid and non-
assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in the
Registration Statement and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ WILSON SONSINI GOODRICH & ROSATI
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Exhibit 23.1
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CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement on Form S-8 of our report dated
March 12, 1999, except for Note 14, which is as of July 1999, relating to the
financial statements of bamboo.com, Inc., which appears in bamboo.com, Inc.'s
Prospectus dated August 25, 1999.
/s/ PRICEWATERHOUSECOOPERS LLP
San Jose, CA
October 21, 1999
