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REGISTRATION NO. 333-____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
XCARE.NET, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 85-0373486
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
6400 S. FIDDLER'S GREEN CIRCLE,
SUITE 14000
ENGLEWOOD, CO 80111
(303) 488-2019
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
AMENDED AND RESTATED 1997 STOCK OPTION PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
1999 DIRECTOR OPTION PLAN
(FULL TITLE OF THE PLANS)
LORINE R. SWEENEY
PRESIDENT AND CHIEF EXECUTIVE
OFFICER
XCARE.NET, INC.
6400 S. FIDDLER'S GREEN CIRCLE,
SUITE 14000
ENGLEWOOD, CO 80111
(303) 488-2019
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
Copy to:
HERBERT P. FOCKLER, ESQ.
WILSON SONSINI GOODRICH & ROSATI, P.C.
650 PAGE MILL ROAD
PALO ALTO, CA 94304-1050
(650) 493-9300
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED AMOUNT OF
TITLE OF MAXIMUM MAXIMUM REGISTRATION
SECURITIES AMOUNT OFFERING AGGREGATE FEE
TO BE TO BE PRICE OFFERING
REGISTERED REGISTERED(1) PER SHARE PRICE
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<S> <C> <C> <C> <C>
Common Stock, par value $0.01
To be issued upon exercise of options under the Amended
and Restated 1997 Stock Option Plan 2,020,000 shares $ 3.01 (2) $ 6,080,200.00
To be issued upon exercise of options under the 1999
Director Option Plan 250,000 shares $18.00 (3) $ 4,500,000.00
To be issued under the 1999 Employee Stock Purchase Plan 500,000 shares $15.30 (4) $ 7,650,000.00
TOTAL 2,770,000 shares $18,230,200.00 $5,068.00
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</TABLE>
(1) For the sole purpose of calculating the registration fee, the number of
shares to be registered under this Registration Statement has been broken
down into three subtotals.
(2) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee. The price of $3.01 per share represents
the weighted average exercise price for outstanding options to purchase a
total of 1,862,403 shares of Common Stock.
(3) Estimated in accordance with Rule 457(h) solely for purposes of calculating
the registration fee on the basis of $18.00, the offering price set forth on
the cover page of the Company's Prospectus dated February 10, 2000 relating
to its initial public offering (the "Market Price").
(4) Estimated in accordance with Rule 457(h) solely for purposes of calculating
the registration fee on the basis of $15.30 (85% of the Market Price).
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XCARE.NET, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference in this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission:
(a) The Registrant's Prospectus filed on February 10, 2000
pursuant to Rule 424(b) of the Securities Act, which contains audited financial
statements for the Registrant's latest fiscal year for which such statements
have been filed.
(b) Not applicable
(c) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 8-A filed January 31, 2000,
pursuant to Section 12(g) of the 1934 Act and declared effective on February 9,
2000.
In addition, all documents 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 securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be 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.
Wilson Sonsini Goodrich & Rosati, Professional Corporation, Palo Alto,
California, is corporate counsel to the Registrant and has rendered an opinion
as to the Common Stock offered hereby. Arthur F. Schneiderman and Rachel S.
Lovejoy, a member and associate, respectively, of Wilson Sonsini Goodrich &
Rosati, beneficially own an aggregate of 15,483 shares of the Registrant's
Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's certificate of incorporation limits the liability of
directors to the maximum extent permitted by Delaware law. Delaware law provides
that directors of a corporation will not be held personally liable for monetary
damages for breach of their fiduciary duties as directors, except for breaches
of the director's duty of loyalty to Registrant or its stockholders, acts or
omissions not in good faith or that involve intentional misconduct or a knowing
violation of law, unlawful payments of dividends or unlawful stock repurchases,
redemptions or other distributions, and transactions from which a director
derives an improper benefit.
The Registrant's bylaws provide that it must indemnify its directors and
executive officers and may indemnify its other officers and employees and agents
to the fullest extent permitted by law. The Registrant believes that
indemnification under its bylaws covers at least negligence and gross negligence
on the part of indemnified parties. The Registrant's bylaws also permit it to
obtain insurance on behalf of any officer,
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director, employee or other agent for any liability arising out of his or her
actions in such capacity, regardless of whether the bylaws would permit
indemnification.
The Registrant has entered into agreements to indemnify its directors
and officers, in addition to indemnification provided for in its bylaws. These
agreements, among other things, provided that the Registrant will indemnify each
of its directors and officers for various expenses, including attorneys' fees,
judgments, fines and settlement amounts incurred by them in any action or
proceeding, including any action by or arising out of their services as one of
its directors or officers, any subsidiaries or any other company or enterprise
to which he or she provides services at its request. In addition, the Registrant
intends to obtain directors' and officers' insurance providing indemnification
for its directors and officers. The Registrant believes that these provisions,
agreements and insurance are necessary to attract and retain qualified directors
and officers.
At present, there is no pending litigation or proceeding involving any
of Registrant's directors, officers, employees or agents where indemnification
will be required or permitted. The Registrant is not aware of any threatened
litigation or proceeding that might result in a claim for such indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
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Exhibit Number Description
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<S> <C>
4.1* Specimen of Common Stock Certificate
4.2* Amended and Restated 1997 Stock Option Plan
4.3* 1999 Employee Stock Purchase Plan
4.4* 1999 Director Option Plan
5.1 Opinion of Counsel as to legality of securities being registered
23.1 Consent of Counsel (contained in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Power of Attorney (see Page II-5 of this Registration Statements)
</TABLE>
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* Incorporated by reference to the Registrant's Registration Statement on Form
S-1, as amended (No. 333-90165), which was declared effective on February 9,
2000.
Item 9. UNDERTAKINGS.
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective
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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, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
1934 Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the of the 1934 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.
C. 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 hereunder, 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.
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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 Englewood, State of Colorado, on this 14th day of
February 2000.
XCARE.NET, INC.
By: /s/ LORINE R. SWEENEY
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Lorine R. Sweeney,
President and Chief Executive Officer
(1)
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints each of Lorine R. Sweeney and Peter Cheesbrough or any of them, each
acting alone, his or her true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for such person and in his or her
name, place and stead, in any and all capacities, in connection with this
Registration Statement, including to sign and file in the name and on behalf of
the undersigned as director or officer of the Registrant (i) any and all
amendments or supplements (including any and all stickers and post-effective
amendments) to this Registration Statement, with all exhibits thereto, and other
documents in connection therewith, and (ii) any and all additional registration
statements, and any and all amendments thereto, relating to the same offering of
securities as those that are covered by this Registration Statement that are
filed pursuant to Rule 462(b) under the Securities Act of 1933, with the
Securities and Exchange Commission and any applicable securities exchange or
securities self-regulatory body, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and things requisite or necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his or her substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
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Pursuant to the requirements of the Securities Act, this registration statement
has been signed on February 14, 2000 by the following persons in the capacities
indicated.
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SIGNATURE TITLE
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<S> <C>
President, Chief Executive Officer, Director (Principal
Executive Officer)
/s/ LORINE R. SWEENEY
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Lorine R. Sweeney
Senior Vice President, Finance and Chief Financial Officer
(Principal Financial and Accounting Officer)
/s/ PETER H. CHEESBROUGH
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Peter H. Cheesbrough
/s/ JEFFERY M. KRAUSS Chairman of the Board
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Jeffery M. Krauss
/s/ FRED L. BROWN Director
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Fred L. Brown
/s/ J. ANDREW COWHERD Director
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J. Andrew Cowherd
/s/ JAMES B. HOOVER Director
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James B. Hoover
Director
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L. Ben Lytle
Director
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Daniel J. Mitchell
/s/ WILLIAM F. REILLY Director
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William F. Reilly
/s/ ROBERT TSAO Director
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Robert Tsao
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(1)
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INDEX TO EXHIBITS
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EXHIBIT
NUMBER DESCRIPTION
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<S> <C>
4.1* Specimen of Common Stock Certificate.
4.2* Amended and Restated 1997 Stock Option Plan.
4.3* 1999 Employee Stock Purchase Plan.
4.4* 1999 Director Option Plan.
5.1 Opinion of counsel as to legality of securities being registered.
23.1 Consent of counsel (contained in Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP.
24.1 Power of Attorney (see page II-4).
</TABLE>
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* INCORPORATED BY REFERENCE TO THE REGISTRANT'S REGISTRATION STATEMENT ON FORM
S-1, AS AMENDED (NO. 333-90165), WHICH WAS DECLARED EFFECTIVE ON FEBRUARY 9,
2000.
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EXHIBIT 5.1
February 14, 2000
XCare.net, Inc.
6400 S. Fiddler's Green Circle, Suite 14000
Englewood, CO 80111
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 February 14, 2000
(the "Registration Statement"), in connection with the registration under the
Securities Act of 1933, as amended, of 2,020,000 shares under the Amended and
Restated 1997 Stock Option Plan, 500,000 shares under the 1999 Employee Stock
Purchase Plan, and 250,000 shares under the 1999 Director Option Plan (which
Plans are referred to herein as the "Plans" and which Shares are referred to
herein as the "Shares"). As your legal counsel, we have examined the proceedings
taken and are familiar with the proceedings proposed to be taken by you in
connection with the proposed sale and issuance of the Shares pursuant to the
Plans.
It is our opinion that, when issued and sold in the manner referred to
in the Plans, the Shares will be legally and validly issued, fully paid and
nonassessable.
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 amendment thereto.
Very truly yours,
/s/ WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
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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 October 22, 1999 relating to the
financial statements, which appears on page F-2 of the Registration Statement on
Form S-1 of XCare.net, Inc. (file no. 333-90165).
/s/ PRICEWATERHOUSECOOPERS LLP
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Broomfield, Colorado
February 9, 2000
