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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 26, 2000
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
----------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------
FREEMARKETS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware 04-3265483
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
22nd Floor, FreeMarkets Center
210 Sixth Avenue
Pittsburgh, PA 15222
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
iMark.com, Inc.
1999 Stock Option Plan
(FULL TITLE OF THE PLAN)
Glen T. Meakem
Chief Executive Officer
22nd Floor, FreeMarkets Center
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)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
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
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
COMMON STOCK, PAR VALUE $.01 PER SHARE 176,299 shares $2.04445272(2) $360,435(2) $96.00
====================================================================================================================================
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which are offered or issued under the iMark.com, Inc. 1999
Stock Option Plan (the "Plan") 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 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 Form 10-K for the year ended December 31, 1999
filed with the Commission on March 16, 2000.
2. The Company's Current Report on Form 8-K dated March 24, 2000
filed with the Commission on April 6, 2000.
3. The Company's Form 10-Q for the quarter ended March 31, 2000
filed with the Commission on May 10, 2000.
4. 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 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 49,275 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.
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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 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
----------- -----------------------------------------------------------
4.1 Amended and Restated Certificate of Incorporation, as
amended by Certificate of Amendment dated May 12, 2000.
4.2 Form of registrant's Amended and Restated Bylaws
(incorporated by reference to Exhibit 3.2(b) of the
registrant's Registration Statement on Form S-1, File No.
333-86755).
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 May 26,
2000.
FREEMARKETS, INC.
By: /s/ GLEN T. MEAKEM
-----------------------------------
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:
Signature Capacity Date
--------- -------- ----
/s/ GLEN T. MEAKEM Principal Executive Officer May 26, 2000
- ------------------------------ and Director
Glen T. Meakem
/s/ JOAN S. HOOPER Principal Financial and May 26, 2000
- ------------------------------ Accounting Officer
Joan S. Hooper
/s/ SAM E. KINNEY, JR. Director May 26, 2000
- ------------------------------
Sam E. Kinney, Jr.
/s/ ERIC C. COOPER Director May 26, 2000
- ------------------------------
Eric C. Cooper
/S/ DAVID A. NOBLE Director May 26, 2000
- ------------------------------
David A. Noble
4
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EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIAL PAGE
EXHIBIT NO. DESCRIPTION NUMBER
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<S> <C> <C>
4.1 Amended and Restated Certificate of Incorporation, as
amended by Certificate of Amendment dated May 12, 2000.
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).
</TABLE>
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Exhibit 4.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
FREEMARKETS, INC.
(as amended by Certificate of Amendment dated May 12, 2000)
----------
1. (a) The name of the corporation is FreeMarkets, Inc. The original
name of the corporation was Online Markets Corporation, which name was
subsequently changed to FreeMarkets OnLine, Inc.
(b) The original Certificate of Incorporation of the corporation was
filed with the Secretary of State of the State of Delaware on March 13, 1995.
2. Pursuant to Sections 228, 242 and 245 of the General Corporation Law
of the State of Delaware, this Amended and Restated Certificate of Incorporation
restates and further amends the provisions of the Amended and Restated
Certificate of Incorporation of the corporation as heretofore amended and
supplemented.
3. The text of the Amended and Restated Certificate of Incorporation as
heretofore amended and supplemented is hereby amended and restated in its
entirety to read as follows:
----------
ARTICLE I
NAME
The name of the corporation is FreeMarkets, Inc.
ARTICLE II
REGISTERED AGENT
The address of the registered office of the corporation in the State of
Delaware is 1209 Orange Street, City of Wilmington 19801, County of New Castle.
The name of the corporation's registered agent at that address is CT
Corporation.
ARTICLE III
PURPOSE
The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
ARTICLE IV
CAPITAL STOCK
The total number of shares of stock which the corporation shall have
authority to issue is Five Hundred Five Million (505,000,000) shares, which
shall be divided into two classes as follows:
<PAGE> 2
A. Five Hundred Million (500,000,000) shares of Common Stock, the par
value of each of which shares is One Cent ($0.01), amounting in the aggregate to
Five Million Dollars ($5,000,000); and
B. Five Million (5,000,000) shares of Preferred Stock, the par value of
each of which shares is One Cent ($0.01), amounting in the aggregate to Fifty
Thousand Dollars ($50,000). The corporation's board of directors is hereby
expressly authorized to provide by resolution or resolutions from time to time
for the issue of the Preferred Stock in one or more series, the shares of each
of which series may have such voting powers, full or limited, or no voting
powers, and such designations, preferences and relative, participating, optional
or other special rights, and qualifications, limitations or restrictions
thereof, as shall be permitted under the General Corporation Law of the State of
Delaware and as shall be stated in the resolution or resolutions providing for
the issue of such stock adopted by the board of directors pursuant to the
authority expressly vested in the board of directors hereby.
ARTICLE V
DIRECTORS
A. The business and affairs of the corporation shall be managed by or
under the direction of a board of directors consisting of such total number of
authorized directors as shall be fixed by, or in the manner provided in, the
bylaws. The board of directors shall be divided into three classes, designated
Class I, Class II and Class III. Each class shall consist, as nearly as may be
possible, of one-third of the total number of authorized directors. Class I
directors shall serve for a term ending upon the annual meeting of stockholders
held in 2000, Class II directors shall serve for a term ending upon the annual
meeting of stockholders held in 2001 and Class III directors shall serve for a
term ending upon the annual meeting of stockholders held in 2002. At each
succeeding annual meeting of stockholders beginning with the annual meeting of
stockholders held in 2000, successors to the class of directors whose term
expires at such annual meeting shall be elected for a three-year term. If the
number of directors is changed, any increase or decrease shall be apportioned
among the classes so as to maintain the number of directors in each class as
nearly equal as possible, and any additional director of any class elected to
fill a vacancy resulting from an increase in such class shall hold office for a
term that shall coincide with the remaining term of that class, but in no case
will a decrease in the number of directors shorten the term of any incumbent
directors. A director shall hold office until the annual meeting for the year in
which his or her term expires and until his or her successor shall be elected
and shall qualify, subject, however, to prior death, resignation, incapacitation
or removal from office, and except as otherwise required by law.
B. Except as otherwise required by law, vacancies and newly created
directorships resulting from any increase in the total number of authorized
directors may be filled by a majority of the directors then in office, although
less than a quorum, or by a sole remaining director. Any director elected to
fill a vacancy not resulting from an increase in the number of directors shall
have the same remaining term as that of his or her predecessor. A director may
be removed by the stockholders only for cause.
C. Notwithstanding the foregoing, whenever the holders of any one or
more classes or series of stock issued by the corporation shall have the right,
voting separately by class or series, to elect directors at an annual or special
meeting of stockholders, the election, term of office, filling of vacancies and
other features of such directorships shall be governed by the term of this
certificate of incorporation applicable thereto and such directors so elected
shall not be divided into classes pursuant to this Article V, in each case
unless expressly provided by such terms.
2
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ARTICLE VI
BYLAWS
In furtherance and not in limitation of the powers conferred by the
laws of the State of Delaware:
A. The board of directors of the corporation is expressly authorized to
adopt, amend or repeal the bylaws of the corporation.
B. Elections of directors need not be by written ballot unless the
bylaws of the corporation shall so provide.
C. The books of the corporation may be kept at such place within or
without the State of Delaware as the bylaws of the corporation may provide or as
may be designated from time to time by the board of directors of the
corporation.
ARTICLE VII
LIMITATION OF LIABILITY
No director shall be personally liable to the corporation or the
holders of shares of capital stock for monetary damages for breach of fiduciary
duty as a director, except (i) for any breach of the duty of loyalty of such
director to the corporation or such holders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the General Corporation Law of Delaware, or (iv)
for any transaction from which such director derives an improper personal
benefit. No amendment to or repeal of this Article VII shall apply to or have
any effect on the liability or alleged liability of any director for or with
respect to any acts or omissions of such director occurring prior to such
amendment or repeal. If the laws of the State of Delaware are hereafter amended
to authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the corporation
shall be eliminated or limited to the fullest extent then permitted. No repeal
or modification of this Article VII shall adversely affect any right of or
protection afforded to a director of the corporation existing immediately prior
to such repeal or modification.
ARTICLE VIII
INDEMNIFICATION
The corporation shall indemnify and may advance expenses to its
officers and directors to the fullest extent permitted by law from time to time
in effect. Without limiting the generality of the foregoing, the bylaws of the
corporation may provide for indemnification and advancement of expenses to the
corporation's officers, directors, employees and agents on such terms and
conditions as the board of directors may from time to time deem appropriate or
advisable.
ARTICLE IX
ACTION BY STOCKHOLDERS
Effective immediately upon the corporation becoming subject to the
periodic reporting requirements of Section 13 of the Securities Exchange Act of
1934, as amended, with respect to any class of its capital stock:
A. No action required to be taken or which may be taken at any annual
or special meeting of stockholders of the corporation may be taken without a
meeting; and
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<PAGE> 4
B. The power of the stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
C. Special meetings of the stockholders of the corporation may be
called only by the board of directors pursuant to a resolution adopted by a
majority of the total number of authorized directors (whether or not there exist
any vacancies in previously authorized directorships at the time any such
resolution is presented to the Board of Directors for adoption), the chairman of
the board of directors, or the chief executive officer.
ARTICLE X
AMENDMENTS
Except as provided herein, from time to time any of the provisions of
this Amended and Restated Certificate of Incorporation may be amended, altered
or repealed, and other provisions authorized by the laws of the State of
Delaware at the time in force may be added or inserted in the manner and at the
time prescribed by said laws, and all rights at any time conferred upon the
stockholders of the corporation by this Amended and Restated Certificate of
Incorporation are granted subject to the provisions of this Article X.
* * *
4
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EXHIBIT 5.1
MORGAN, LEWIS & BOCKIUS LLP
ONE OXFORD CENTRE
PITTSBURGH, PENNSYLVANIA 15219-1417
May 26, 2000
FreeMarkets, Inc.
22nd Floor, One Oliver Plaza
210 Sixth Avenue
Pittsburgh, Pennsylvania
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 176,299 shares of Common
Stock, par value $.01 per share (the "Common Stock"), of FreeMarkets. Inc. (the
"Company") which will be issued pursuant to the iMark.com, Inc. 1999 Stock
Option Plan (the "Plan"). We have examined the Company's Amended and Restated
Certificate of Incorporation, the Company's Amended and Restated Bylaws, 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
genuiness 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 Plan, when
issued and delivered as contemplated by the Plan, will be validly issued, fully
paid and nonassessable.
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
<PAGE> 1
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 January 31, 2000, except
for Note 10 as to which the date is March 15, 2000, relating to the financial
statements and financial statement schedule of FreeMarkets, Inc., which appear
in FreeMarkets, Inc.'s Annual Report on Form 10-K for the year ended December
31, 1999.
PricewaterhouseCoopers LLP
Pittsburgh, Pennsylvania
May 24, 2000
