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As filed with the Securities and Exchange Commission on March 6, 2000
Registration Statement No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
Registration Statement
Under
The Securities Act of 1933
HARRIS INTERACTIVE INC.
(Exact name of Registrant as Specified in its Charter)
DELAWARE
(State or other Jurisdiction of Incorporation or Organization)
16-1538028
(IRS Employer Identification No.)
135 Corporate Woods
Rochester, New York 14623
(Address of principal executive offices)
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of Plan)
Gordon S. Black, Chairman and Chief Executive Officer
Harris Interactive, Inc.
135 Corporate Woods
Rochester, New York 14623
(716) 272-9020
(Name, address, including zip code, and telephone number
including area code, of Agent for Service)
with a copy to:
Catherine A. King, Esq.
Harris Beach & Wilcox LLP
130 East Main Street
Rochester, New York 14604
(716) 232-4440
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price per Offering Registration
Registered(1) Registered(2) Share(3) Price(3) Fee(3)
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common
Stock 500,000 $11.41 $5,705,000 $1,506.12
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of
1933, this Registration Statement also covers an indeterminate
amount of interests to be offered and sold pursuant to the plan.
(2) The Registration Statement also includes an indeterminate number of
additional shares that may become issuable as a result of terminated,
expired or surrendered options to purchase Common Stock, or pursuant
to the antidilution provisions of the Plan.
(3) In accordance with Rule 457(h)(1), calculated on the basis of the
high and low prices of the Registrant's Common Stock on the Nasdaq
National Market System on March 3, 2000.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in this
Registration Statement:
1. The Registrant's Prospectus dated December 6, 1999.
2. The Registrant's Quarterly Report on Form 10-Q for the quarter
ended December 31, 1999.
3. All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment to this Registration Statement
which indicates that all of the shares of common stock offered have been sold or
which deregisters all of such shares then remaining unsold, shall be deemed to
be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
4. The description of the common stock of the Registrant contained in
its Registration Statement on Form 8-A filed under the Securities Exchange Act
of 1934, which became effective as of December 6, 1999, including any
amendment(s) or report(s) filed for the purpose of updating such description.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify directors and officers as well as other employees and
individuals against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and
2
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reasonably incurred by such person in connection with any threatened, pending
or completed actions, suits or proceedings in which such person is made a
party by reason of such person being or having been a director, officer,
employee or agent of the Registrant. The Delaware General Corporation Law
provides that Section 145 is not exclusive of other rights to which those
seeking indemnification may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise. Article VIII of the
Registrant's Bylaws provides for indemnification by the Registrant of its
directors, officers and employees to the fullest extent permitted by the
Delaware General Corporation Law.
Section 102(b)(7) of the Delaware General Corporation Law permits a
corporation to provide in its certificate of incorporation that a director of
the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) for unlawful payments of dividends or unlawful stock repurchases,
redemptions or other distributions, or (iv) for any transaction from which
the director derived an improper personal benefit. Article X of the
Registrant's Amended and Restated Certificate of Incorporation provides for
such limitation of liability.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or persons
controlling the Registrant pursuant to the foregoing provisions, the
Registrant has been informed that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS
The following exhibits are filed with this Registration Statement:
4.1 Form of Amended and Restated Certificate of
Incorporation of the Registrant, defining the rights
of holders of its Common Stock (Incorporated by
reference from Registrant's Form S-1 dated September
17, 1999 (Registration No.: 333-87311)).
4.2 1999 Employee Stock Purchase Plan (Incorporated by
reference from Registrant's Form S-1 dated
September 17, 1999 (Registration No.: 333-87311)).
5. Opinion of Harris Beach & Wilcox LLP.
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23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Harris Beach & Wilcox LLP (included in
Exhibit 5).
ITEM 9. UNDERTAKINGS
(a) RULE 415 OFFERINGS.
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:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this 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 this
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 and 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 the volume and price
represent no more than 20 percent change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective Registration Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(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 with or furnished to
the Commission by the Registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
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(b) FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY
REFERENCE.
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 this
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.
(c) FILING OF REGISTRATION STATEMENT ON FORM S-8.
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 provisions of the
Registrant's charter, 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 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 or amendment thereto to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Rochester, State of
New York, on March 3, 2000.
HARRIS INTERACTIVE INC.
By: /s/ Gordon S. Black
--------------------------------
Gordon S. Black, Chairman and
Chief Executive Officer
By: /s/ Bruce A. Newman
--------------------------------
Bruce A. Newman, Chief
Financial Officer (principal
financial officer)
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Each person whose signature appears below hereby constitutes and
appoints GORDON S. BLACK and BRUCE A. NEWMAN each of them, such person's true
and lawful attorney-in-fact and agent, with full powers of substitution, for
such person and in such person's name, place and stead, in any and all
capacities, to sign and to file any and all amendments, including
post-effective amendments, to this Registration Statement with the Securities
and Exchange Commission, granting to said attorney-in-fact full power and
authority to perform any other act on behalf of the undersigned required to
be done in connection therewith.
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 dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
By: /s/ Gordon S. Black Chairman of the March 3, 2000
---------------------------------- Board and Chief
Gordon S. Black Executive Officer
(principal executive
officer)
By: /s/ David H. Clemm President, Chief March 3, 2000
---------------------------------- Operating Officer, and
David H. Clemm Director
By: /s/ Leonard R. Bayer Director March 3, 2000
----------------------------------
Leonard R. Bayer
By: /s/ Thomas D. Berman Director March 3, 2000
----------------------------------
Thomas D. Berman
By: /s/ G. Thomas Clark Director March 3, 2000
----------------------------------
G. Thomas Clark
By: /s/ James R. Riedman Director March 3, 2000
----------------------------------
James R. Riedman
By: /s/ Benjamin D. Addoms Director February 24, 2000
----------------------------------
Benjamin D. Addoms
By: /s/ Graham Phillips Director March 3, 2000
----------------------------------
Graham Phillips
</TABLE>
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EXHIBIT INDEX
4.1 Form of Amended and Restated Certificate of Incorporation of the
Registrant, defining the rights of holders of its Common Stock
(Incorporated by reference from Registrant's Form S-1 dated
September 17, 1999 (Registration No.: 333-87311)).
4.2 1999 Employee Stock Purchase Plan (Incorporated by reference from
Registrant's Form S-1 dated September 17, 1999 (Registration
No.: 333-87311)).
5. Opinion of Harris Beach & Wilcox LLP.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Harris Beach & Wilcox LLP (included in Exhibit 5).
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EXHIBIT 5
[HARRIS BEACH & WILCOX LETTERHEAD]
March 3, 2000
Harris Interactive Inc.
135 Corporate Woods
Rochester, New York 14623
Ladies and Gentlemen:
We have acted as counsel to Harris Interactive Inc., a Delaware
corporation (the "Company"), in connection with the filing of the Company's
registration statement on Form S-8 with the Securities and Exchange
Commission on or about March 6, 2000 (the "Registration Statement"), under
the Securities Act of 1933, as amended. The Registration Statement is being
filed in connection with the Company's offering of up to 500,000 shares of
Common Stock (the "Shares") pursuant to the Company's 1999 Employee Stock
Purchase Plan (the "Plan").
We are familiar with the proceedings to date with respect to such
offering and have examined such records, documents and matters of law and
satisfied ourselves as to such matters of fact as we have considered relevant
for purposes of this opinion.
For purposes of this opinion, we have assumed the authenticity of
all documents submitted to us as originals and the conformity to the
originals of all documents submitted to us as copies. We have also assumed
the genuineness of the signatures of persons signing all documents in
connection with which this opinion is rendered, the authority of such persons
signing on behalf of the parties thereto, and the due authorization,
execution and delivery of all documents by the parties thereto.
We are of the opinion that, when the Shares shall have been issued
and sold on the terms contemplated by the Plan, and the Registration
Statement shall have become effective, the Shares will be legally issued,
fully paid and non-assessable.
This opinion shall be limited to the Delaware General Corporation
Law and the federal laws of the United States of America.
We hereby consent to the use of this Opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Harris Beach & Wilcox LLP
HARRIS BEACH & WILCOX LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated September 1, 1999, except for Note 16,
which is as of September 7, 1999, relating to the consolidated financial
statements, which appears in the Harris Interactive Inc. Form 424(b)(4) dated
December 6, 1999.
PRICEWATERHOUSECOOPERS LLP
Rochester, New York
March 6, 2000
