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As filed with the Securities and Exchange Commission on April 3, 2000
REGISTRATION STATEMENT 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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FIREPOND, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 41-1462409
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
890 WINTER STREET
WALTHAM, MASSACHUSETTS 02451
(781) 487-8400
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
FULL TITLE OF THE PLANS
AMENDED AND RESTATED 1997 STOCK OPTION PLAN
1999 STOCK OPTION AND GRANT PLAN
1999 DIRECTOR PLAN
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KLAUS P. BESIER
CHAIRMAN, CHIEF EXECUTIVE OFFICER AND PRESIDENT
FIEPOND, INC.
890 WINTER STREET
WALTHAM, MASSACHUSETTS 02451
(781) 487-8400
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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With copies to:
Jack Steele Susan Ledeux
McDermott, Will & Emery FirePond, Inc.
28 State Street 890 Winter Street
Boston, MA 02109 Waltham, Massachusetts 02451
(617) 535-4000 (781) 487-8400
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================================================
Title of Securities Being Amounts to be Proposed Maximum Proposed Maximum Amount of
Registered Registered (1) Offering Price Per Aggregate Offering Registration Fee
Share (2) Price (3)
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01
per share 4,030,062 $ 3.95 $ 15,918,744.90 $ 4,202.55
2,191,010 4.46 9,771,904.60 2,579.78
173,514 7.72 1,252,771.08 330.73
1,786,947 9.90 17,657,768.70 4,661.65
836,991 11.00 8,887,890.00 2,346.40
9,000 55.88 502,920.00 132.77
8,000 66.00 528,000.00 139.39
5,000 73.63 368,150.00 97.19
7,344 84.00 616,056.00 162.64
21,166 96.00 2,031,936.00 536.43
2,777,777 40.9375(4) 113,715,245.94 30,020.82
---------- ------- --------------- ----------
11,814,466 171,251,387.22 45,210.35
- -----------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Includes 127,382 shares to be offered pursuant to the 1997 Stock
Option Plan, 2,383,749 shares to be offered pursuant to the 1999 Stock
Option and Grant Plan of the Registrant and 2,666,666 shares to be
offered pursuant to the 1999 Director Plan. This Registration
Statement also relates to such indeterminate number of additional
shares of FirePond, Inc. Common Stock as may be required pursuant to
the Amended and Restated 1997 Stock Option Plan, the 1999 Stock Option
and Grant Plan and the 1999 Director Plan in the event of a stock
dividend, reverse stock split, split-up, recapitalization, forfeiture
of stock under these plans or other similar event.
(2) The number of shares and the price per share of all options issued
prior to January 4, 2000 reflect a two-for-three reverse stock split
which occurred on that date.
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(3) This estimate is made pursuant to Rule 457(h) under the Securities Act
of 1933, as amended (the "Securities Act"), solely for the purposes of
determining the registration fee and is based upon the prince at which
outstanding options may be exercised.
(4) This estimate is made pursuant to Rule 457(c) and (h) under the
Securities Act of 1933 solely for the purposes of determining the
amount of the registration fee. The registration fee is based upon the
average of the high and low prices for the Registrant's Common Stock,
par value $.01 per share, as reported on the Nasdaq National Market on
March 30, 2000.
2
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. PLAN INFORMATION.*
Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Part I to be contained in the Section 10(a)
Prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933 (the "Securities Act") and the Introductory
Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
FirePond, Inc. (the "Registrant") hereby incorporates by
reference the following documents which have previously been filed
with the Securities and Exchange Commission:
(a) the Registrant's final prospectus dated February 4, 2000 as filed
with the Securities and Exchange Commission on February 4, 2000
pursuant to Rule 424(b) under the Securities Act (the
"Prospectus");
(b) all other reports filed with the Securities and Exchange
Commission by the Registrant pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") since February 4, 2000; and
(c) the description of the Registrant's Common Stock contained in the
Registration Statement on Form 8-A dated January 31, 2000 as
filed with the Securities and Exchange Commission on January 31,
2000 pursuant to Section 12(g) of the Securities Exchange Act of
1934, as amended.
In addition, all documents subsequently filed with the Securities and
Exchange Commission 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
hereto that indicates that all securities offered hereunder 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 a part hereof
from the date of filing of such documents. Any statement contained in a document
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein or in any
subsequently filed document which also is incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
Item 4. DESCRIPTION OF SECURITIES.
Not Applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
Item 6 INDEMNIFICATION OF DIRECTORS AND OFFICERS.
In accordance with Section 145 of the General Corporation Law of the
State of Delaware, Article VII of the Registrant's Restated Certificate of
Incorporation (the "Certificate") provides that no director of the Registrant
shall be personally liable to the Registrant 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 Registrant or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) in respect of
intentional misconduct or a knowing violation of law, (iii) in respect of
certain unlawful dividend payments or stock redemptions or repurchases, or (iv)
for any transaction from which the director derived an improper personal
benefit. In addition, the Certificate provides that if the General Corporation
Law of the State of Delaware is amended to authorize the further elimination or
limitation of the personal liability of directors, then the liability of a
director of the Registrant shall be eliminated or limited to the fullest extent
permitted by the General Corporation Law of the State of Delaware, as so
amended.
Article V of the Registrant's Amended and Restated By-laws (the
"By-laws") provides for indemnification by the Registrant of its directors,
officers and certain non-officer employees (including officers and certain
non-officer employees of subsidiaries) under certain circumstances against
expenses (including attorneys fees, judgments, fines and amounts paid in
settlement) reasonably incurred in connection with the defense or settlement of
any threatened, pending or completed legal proceeding in which any such person
is involved by reason of the fact that such person is or was a director, an
officer or an employee of the Registrant, or is acting in any capacity with
other entities at the written request of the registrant, if such person acted in
good faith and in a manner he or she reasonably believed to be in, or not
opposed to, the best interests of the Registrant, and with respect to criminal
actions or proceedings, that such person had no reasonable cause to believe his
or her conduct was unlawful.
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Under Section 7 of the Underwriting Agreement filed as Exhibit 1.1 to
the FirePond, Inc. Registration Statement on Form S-1 (File No. 333-90911), the
Underwriters have agreed to indemnify, under certain conditions, the Registrant,
its directors, certain officers and persons who control the Registrant within
the meaning of the Securities Act against certain liabilities.
The Company carries directors' and officers' liability insurance
covering its directors and officers.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
The following is a complete list of exhibits filed or incorporated by
reference as part of this Registration Statement.
<TABLE>
<CAPTION>
Exhibits
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<S> <C>
3.3 Third Amended and Restated Certificate of Incorporation of the Registrant*
3.5 First Amended and Restated By-laws of the Registrant*
4.1 Specimen Certificate for Shares of Common Stock, par value $.01 per share, of the Registrant*
5.1 Opinion of McDermott, Will & Emery LLP as to the legality of the securities being offered
10.1 Amended and Restated 1997 Stock Option Plan of the Registrant*
10.2 1999 Stock Option and Grant Plan of the Registrant*
10.3 1999 Director Plan of the Registrant*
23.1 Consent of McDermott, Will & Emery (included in Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP
23.4 Powers of Attorney (included on signature pages to this Registration Statement)
</TABLE>
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* Incorporated by reference to the relevant exhibit to the FirePond, Inc.
Registration Statement on Form S-1 (File No. 333-90911), as amended, as filed
with the Securities and Exchange Commission.
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 amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) to reflect in the prospectus any acts or events arising
after the effective date of the 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 the 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 end of the estimated 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 volume and price represent no more than a twenty
percent (20%) change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective Registration Statement; and
(iii) 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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) herein do
not apply if the Registration Statement is on Form S-3, Form S-8 or
Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the undersigned Registrant pursuant to Section 13 or
Section 15 (d) of the Exchange Act that are incorporated by reference
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; and
(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 15(d) of the
Exchange Act (and, where applicable, each filing of an
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<PAGE> 5
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.
(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, 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.
3
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Pursuant to the requirements of the Securities Act, FirePond, Inc.
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 Waltham, Massachusetts on March 31, 2000
FirePond, Inc.
By: /s/ Klaus P. Besier
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Klaus P. Besier
Chairman, Chief Executive Officer and
President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature appears
below constitutes and appoints each of Klaus P. Besier and Paul K. McDermott
such person's true and lawful attorney-in-fact and agent with full power of
substitution and resubstitution for such period and in such person's name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file with
same, with all exhibits thereto, and all documents in connection therewith, with
the Securities and Exchange Commission, granting unto each said attorney-in-fact
and agent full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully to
all intents and purposes as such person might or could do in person, hereby
ratifying and confirming all that any said attorney-in-fact and agent, or any
substitute or substitutes of any of them, may lawfully 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 dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Klaus P. Besier Chairman, President, Chief Executive Officer, March 31, 2000
- --------------------------------------- and Director (Principal Executive Officer)
Klaus P. Besier
/s/ Paul K. McDermott Chief Financial Officer and Vice President March 31, 2000
- --------------------------------------- of Finance and Administration (Principal Financial
Paul K. McDermott and Accounting Officer)
/s/ Paul R. Butare Director March 31, 2000
- ---------------------------------------
Paul R. Butare
/s/ J. Michael Cline Director March 31, 2000
- ---------------------------------------
J. Michael Cline
/s/ William O. Grabe Director March 31, 2000
- ---------------------------------------
William O. Grabe
- --------------------------------------- Director
Gerhard Schulmeyer
- --------------------------------------- Director
Larry Weber
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibits
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<S> <C>
3.3 Third Amended and Restated Certificate of Incorporation of the Registrant*
3.5 First Amended and Restated By-laws of the Registrant*
4.1 Specimen Certificate for Shares of Common Stock, par value $.01 per share, of the Registrant*
5.1 Opinion of McDermott, Will & Emery LLP as to the legality of the securities being offered
10.1 Amended and Restated 1997 Stock Option Plan*
10.2 1999 Stock Option and Grant Plan of the Registrant*
10.3 1999 Director Plan of the Registrant*
23.1 Consent of McDermott, Will & Emery (included in Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP
23.4 Powers of Attorney (included on signature pages to this Registration Statement)
</TABLE>
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* Incorporated by reference to the relevant exhibit to the FirePond, Inc.
Registration Statement on Form S-1 (File No. 333-90911), as amended, as filed
with the Securities and Exchange Commission.
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<PAGE> 1
EXHIBIT 5.1
McDermott, Will & Emery
FirePond, Inc.
890 Winter Street
Waltham, MA 02548
Ladies and Gentlemen:
Re: Registration Statement on Form S-8
This opinion is delivered in our capacity as counsel to FirePond, Inc. (the
"Company") in connection with the preparation and filing with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the "Act") of
a registration Statement on Form S-8 (the "Registration Statement") relating to
11,814,466 shares of Common Stock, par value $.01 per share (the "Registered
Shares"). Of the Registered Shares, the Company is authorized to issue 3,000,000
shares pursuant to the 1999 Stock Option and Grant Plan, 8,314,466 shares
pursuant to the Amended and Restated 1997 Stock Option Plan and 500,000 shares
pursuant to the 1999 Director Plan, collectively, with the 1999 Stock Option and
Grant Plan and the Amended and Restated 1997 Stock Option Plan, the "Plans".
As counsel for the Company, we have examined copies of the Plans, the
Company's Third Amended and Restated Certificate of Incorporation and the
Amended and Restated By-laws, each as presently in effect, and such records,
certificates and other documents of the Company as we have deemed necessary or
appropriate for the purposes of this opinion.
We are attorneys admitted to practice in the Commonwealth of Massachusetts.
We express no opinion concerning the laws of any jurisdiction other than the
laws of the United States of America, the Commonwealth of Massachusetts and the
Delaware General Corporation Law, the applicable provisions of the Delaware
Constitution and the reported judicial decisions interpreting the law.
Based on the foregoing, we are of the opinion that upon the issuance and
delivery of the Registered Shares against payment therefor in accordance with
the terms of the respective Plans and any agreement thereunder, the Registered
Shares will be legally issued, fully paid and non-assessable shares of the
Company's Common Stock.
The foregoing assumes all requisite steps will be taken to comply with the
requirements of the Act, applicable requirements of state laws regulating the
offer and sale of securities and applicable requirements of the National
Association of Securities Dealers, Inc.
We hereby consent to being named as counsel to the Company in the
Registration Statement and to the inclusion of this opinion as an exhibit I to
the Registration Statement.
Very truly yours,
McDermott, Will & Emery
6
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To: FirePond, Inc.
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our report dated December 10,
1999, except with respect to the matters discussed in notes 9(b) and 14, as to
which the date is January 4, 2000, included in FirePond, Inc.'s Form S-1 for the
year ended October 31, 1999, and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen
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ARTHUR ANDERSEN LLP
Boston, Massachusetts
March 30, 2000
