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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 10, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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FREEMARKETS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware 04-3265483
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
22nd Floor, One Oliver Plaza
210 Sixth Avenue
Pittsburgh, PA 15222
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
1996 Stock Incentive Plan
Amended and Restated Stock Incentive Plan
Employee Stock Purchase Plan
(FULL TITLE OF THE PLANS)
Glen T. Meakem
Chief Executive Officer
22nd Floor, One Oliver Plaza
210 Sixth Avenue
Pittsburgh, PA 15222
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(412) 434-0500
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED(1) SHARE PRICE FEE
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<S> <C> <C> <C> <C>
1996 STOCK INCENTIVE PLAN 815,000 shares $ 0.47 (2) $ 383,050 (2) $62,333
COMMON STOCK, PAR VALUE $.01 PER SHARE
AMENDED AND RESTATED STOCK INCENTIVE 10,787,050 shares $ 5.26 (3) $ 56,739,883 (3)
PLAN COMMON STOCK, PAR VALUE $.01 PER 3,056,130 shares $ 48.00 (4) $ 146,694,240 (4)
SHARE
EMPLOYEE STOCK PURCHASE PLAN 500,000 shares $ 40.80 (5) $ 20,400,000 (5)
COMMON STOCK, PAR VALUE $.01 PER SHARE
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which are offered or issued under any of the plans to prevent
dilution resulting from stock splits, stock dividends or similar
transactions.
(2) Calculated pursuant to Rule 457(h) under the Securities Act of 1933, as
amended (the "Securities Act"), solely for the purpose of calculating the
registration fee. The calculation is based upon the weighted average per
share exercise price of outstanding options under the 1996 Stock Incentive
Plan.
(3) Calculated pursuant to Rule 457(h) under the Securities Act solely for the
purpose of calculating the registration fee. The calculation is based upon
the weighted average per share exercise price of outstanding options under
the Amended and Restated Stock Incentive Plan.
(4) Calculated pursuant to Rule 457(h) under the Securities Act solely for the
purpose of calculating the registration fee. The calculation with respect
to ungranted awards under the Amended and Restated Stock Incentive Plan is
based upon the initial public offering price per share as set forth in
the Registrant's Prospectus pursuant to Rule 424(b) filed with the
Securities and Exchange Commission on December 10, 1999.
(5) Calculated pursuant to Rule 457(h) under the Securities Act of 1933 solely
for the purpose of calculating the registration fee. The calculation is
based upon the initial public offering price per share as set forth in
the Registrant's Prospectus pursuant to Rule 424(b) filed with the
Securities and Exchange Commission on December 10, 1999, multiplied by
85%, which is the percentage of the fair market value of the Common Stock
applicable to purchases under the Employee Stock Purchase Plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by FreeMarkets, Inc. (the "Company") with
the Securities and Exchange Commission (the "Commission") are incorporated by
reference into this Registration Statement:
1. The Company's Prospectus covering the offer and sale of shares
of the Company's Common Stock, par value $.01 per share (the
"Common Stock"), filed with the Commission on December 10,
1999 pursuant to Rule 424(b) under the Securities Act, which
contains audited financial statements for the Company's latest
fiscal year for which such statements have been filed.
2. The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed with the
Commission on November 2, 1999, including any amendment or
report filed for the purpose of updating such description.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), after the date of this Registration
Statement, but prior to the filing of a post-effective amendment to this
Registration Statement which indicates that all securities offered by this
Registration Statement have been sold or which deregisters all such securities
then remaining unsold, shall be deemed to be incorporated by reference into this
Registration Statement. Each document incorporated by reference into this
Registration Statement shall be deemed to be a part of this Registration
Statement from the date of the filing of such document with the Commission until
the information contained therein is superseded or updated by any subsequently
filed document which is incorporated by reference into this Registration
Statement or by any document which constitutes part of the prospectus relating
to the 1996 Stock Incentive Plan, the Amended and Restated Incentive Plan or the
Employee Stock Purchase Plan meeting the requirements of Section 10(a) of the
Securities Act.
ITEM 4. DESCRIPTION OF SECURITIES.
The class of securities to be offered under this Registration Statement
is registered under Section 12(g) of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
As of the date of this Registration Statement, certain attorneys of
Morgan, Lewis & Bockius LLP own an aggregate of 50,275 shares of the
registrant's Common Stock, and a partner of Morgan, Lewis & Bockius LLP who is
the registrant's Assistant Secretary holds options to purchase 20,000 shares of
Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL")
permits a corporation, in its certificate of incorporation, to limit or
eliminate, subject to certain statutory limitations, the liability of directors
to the corporation or its stockholders for monetary damages for breaches of
fiduciary duty, except for liability (a) for any breach of the director's duty
of loyalty to the corporation or its stockholders, (b) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (c) under Section 174 of the DGCL, or (d) for any transaction from which
the director derived an improper personal benefit. Article VII of the
registrant's Amended and Restated Certificate of Incorporation provides that the
personal liability of directors of the registrant is eliminated to the fullest
extent permitted by Section 102(b)(7) of the DGCL.
Under Section 145 of the DGCL, a corporation has the power to indemnify
directors and officers under certain prescribed circumstances and subject to
certain limitations against certain costs and expenses, including attorneys'
fees actually and reasonably incurred in connection with any action, suit or
proceeding, whether civil, criminal, administrative or investigative, to which
any of them is a party by reason of being a director or officer of the
corporation if it is determined that the director or officer acted in accordance
with the applicable standard of conduct set forth in such
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statutory provision. Article VII of the registrant's Amended and Restated Bylaws
provides that the registrant will indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding by reason of the fact that he is or was (or to the extent
permitted under Delaware law, has agreed to be) a director, officer, employee or
agent of the registrant, or is or was serving (or, to the extent permitted under
Delaware law, has agreed to serve) at the request of the registrant as a
director, officer, employee or agent of another entity, against certain
liabilities, costs and expenses. Article VII further permits the registrant to
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the registrant, or is or was serving at the request of the
registrant as a director, officer, employee or agent of another entity, against
any liability asserted against such person and incurred by such person in any
such capacity or arising out of his status as such, whether or not the
registrant would have the power to indemnify such person against such liability
under the DGCL. The registrant expects to maintain directors' and officers'
liability insurance.
The registrant has entered into indemnification agreements with its
directors and officers and intends to enter into indemnification agreements with
any new directors and officers in the future.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable
ITEM 8. EXHIBITS.
The following exhibits are filed herewith or incorporated by reference
as part of this Registration Statement:
EXHIBIT NO. DESCRIPTION
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4.1 Form of registrant's Amended and Restated Certificate of
Incorporation (incorporated by reference to Exhibit 3.1(b) of
the registrant's Registration Statement on Form S-1, File No.
333-86755 (the "Form S-1") and to be effective upon the
closing of the registrant's initial public offering).
4.2 Form of registrant's Amended and Restated Bylaws (incorporated
by reference to Exhibit 3.2(b) of the Form S-1 and to be
effective upon the closing of the registrant's initial public
offering).
4.3 Registrant's 1996 Stock Incentive Plan (incorporated by
reference to Exhibit 10.5) of the Form S-1).
4.4 Registrant's Amended and Restated Incentive Plan (incorporated
by reference to Exhibit 10.6) of the Form S-1).
4.5 Registrant's Employee Stock Purchase Plan (incorporated by
reference to Exhibit 10.7) of the Form S-1).
5.1 Opinion of Morgan, Lewis & Bockius LLP.
23.1 Consent of Morgan, Lewis & Bockius LLP (included in Exhibit
5.1).
23.2 Consent of PricewaterhouseCoopers LLP.
24.1 Power of attorney (included on signature page of this
registration statement).
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 facts 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;
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(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) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in
the 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.
(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 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.
* * *
(h) 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 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
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 Pittsburgh, Commonwealth of Pennsylvania, on December
10, 1999.
FREEMARKETS, INC.
By: /s/ GLEN T. MEAKEM
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Glen T. Meakem
President, Chief Executive Officer
and Chairman of the Board
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints, Glen T. Meakem and Sam E. Kinney,
Jr., and each of them, as his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments to this
registration statement (including post-effective amendments) and any and all
additional registration statements pursuant to Rule 462(b) under the Securities
Act of 1933, as amended, in connection with or related to the offering
contemplated by this registration statement and its amendments, if any, and to
file the same, with all exhibits thereto and all other 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 in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, or their or his substitutes or
substitute, 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:
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<CAPTION>
SIGNATURE CAPACITY DATE
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<S> <C> <C>
/s/ GLEN T. MEAKEM Principal Executive Officer and Director December 10, 1999
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Glen T. Meakem
/s/ JOAN S. HOOPER Principal Financial and Accounting Officer December 10, 1999
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Joan S. Hooper
/s/ SAM E. KINNEY, JR. Director December 10, 1999
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Sam E. Kinney, Jr.
/s/ ERIC C. COOPER Director December 10, 1999
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Eric C. Cooper
/s/ DAVID A. NOBLE Director December 10, 1999
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David A. Noble
/s/ L. JOHN DOERR Director December 10, 1999
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L. John Doerr
/s/ THOMAS J. MEREDITH Director December 10, 1999
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Thomas J. Meredith
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EXHIBIT INDEX
SEQUENTIAL PAGE
EXHIBIT NO. DESCRIPTION NUMBER
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5.1 Opinion of Morgan, Lewis & Bockius LLP.
23.1 Consent of Morgan, Lewis & Bockius LLP (included in
Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP.
24.1 Power of attorney (included on signature page of this
registration statement).
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EXHIBIT 5.1
MORGAN, LEWIS & BOCKIUS LLP
ONE OXFORD CENTRE
PITTSBURGH, PENNSYLVANIA 15219-1417
December 10, 1999
FreeMarkets, Inc.
22nd Floor, One Oliver Plaza
210 Sixth Avenue
Pittsburgh, Pennsylvania 15222
Re: Form S-8 Registration Statement
Ladies and Gentlemen:
As your counsel, we have assisted in the preparation of a Registration Statement
on Form S-8 (the "Registration Statement") for filing with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as amended (the
"Act"), and the rules and the regulations thereunder.
The Registration Statement relates to an aggregate of 15,158,180 shares of
Common Stock, par value $.01 per share (the "Common Stock"), of FreeMarkets.
Inc. (the "Company") which will be issued pursuant to the 1996 Stock Incentive
Plan, the Amended and Restated Stock Incentive Plan and the Employee Stock
Purchase Plan (together, the "Plans"). We have examined the Company's
Certificate of Incorporation and Bylaws, each as amended to date, minutes and
such other documents, and have made such inquiries of the Company's officers, as
we deemed appropriate. In our examination, we have assumed the genuineness of
all signatures, the authenticity of all items submitted to us as originals, and
the conformity with originals of all items submitted to us as copies.
Based upon the foregoing, it is our opinion that the Company's Common Stock
originally issued by the Company to eligible participants through the Plans,
when issued and delivered as contemplated by the Plans, will be validly issued,
fully paid and non-assessable.
We hereby consent to the use of this opinion as Exhibit 5.1 to the Registration
Statement. In giving such consent, we do not thereby admit that we are acting
within the category of persons whose consent is required under Section 7 of the
Act or the rules and regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
/s/ MORGAN, LEWIS & BOCKIUS 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 October 15, 1999,
relating to the financial statements and financial statement schedule of
FreeMarkets, Inc. and Subsidiaries, which appears in FreeMarkets, Inc.'s
Registration Statement on Form S-1 (No. 333-86755).
PricewaterhouseCoopers LLP
Pittsburgh, Pennsylvania
December 9, 1999
