S-8: Initial registration statement for securities to be offered to employees pursuant to employee benefit plans
Published on January 5, 2001
As filed with the Securities and Exchange Commission on January 5, 2001
REGISTRATION NO. 333-_____
- --------------------------------------------------------------------------------
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------
INTUIT INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 77-0034661
(State of Incorporation) (I.R.S. Employer
Identification No.)
2535 GARCIA AVENUE
MOUNTAIN VIEW, CALIFORNIA 94043
(Address of Principal Executive Offices)
OPTIONS GRANTED UNDER THE EMPLOYEEMATTERS, INC.
1999 STOCK OPTION PLAN AND ASSUMED BY INTUIT INC.
(Full title of the Plan)
-------------
CATHERINE L. VALENTINE, ESQ.
INTUIT INC.
2632 MARINE WAY, MS 7-1145
MOUNTAIN VIEW, CALIFORNIA 94303
(650) 944-6000
(Name, Address and Telephone Number of Agent for Service)
-------------
Copies to:
KENNETH A. LINHARES, ESQ.
FENWICK & WEST LLP
TWO PALO ALTO SQUARE
PALO ALTO, CALIFORNIA 94306
CALCULATION OF REGISTRATION FEE
(1) Represents shares subject to issuance on exercise of options assumed by
the Registrant on December 20, 2000 in connection with its acquisition
of EmployeeMatters, Inc.
(2) The offering price information is calculated with reference to the
weighted average exercise price per share of the options pursuant to
Rule 457(h), under the Securities Act of 1933, as amended, solely for
the purpose of calculating the registration fee.
(3) Fee calculated pursuant to Section 6(b) of the Securities Act of 1933,
as amended.
PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This Registration Statement relates to 23,195 shares of Common Stock,
$0.01 par value per share, of the Registrant subject to issuance on exercise of
options assumed by the Registrant in connection with its acquisition of
EmployeeMatters, Inc.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The Registrant incorporates into this Registration Statement the
following documents filed with the Securities and Exchange Commission (the
"Commission"):
(a) The Registrant's latest annual report filed pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), or the latest prospectus filed by the
Registrant pursuant to Rule 424(b) under the Securities Act of
1933, as amended (the "Securities Act"), that contains audited
financial statements for the Registrant's latest fiscal year for
which such statements have been filed.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the
Registrant's annual report or prospectus referred to in (a) above.
(c) The description of the Registrant's Common Stock contained in the
Registrant's registration statement on Form 8-A filed with the
Commission under Section 12 of the Exchange Act, including any
amendment or report filed for the purpose of updating such
description.
All documents subsequently 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 hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed incorporated by reference herein and to be a part hereof from the date of
the filing of such documents.
ITEM 5. NAMED EXPERTS; INTERESTS OF NAMED COUNSEL
The consolidated financial statements and schedule of Registrant
appearing in Registrant's Form 10-K for the year ended July 31, 2000, have been
audited by Ernst & Young LLP, independent auditors, to the extent indicated in
their report thereon that is included therein and incorporated herein by
reference. Such consolidated financial statements are incorporated herein by
reference in reliance upon such report given upon the authority of such firm as
experts in accounting and auditing.
The statements of income, stockholders' equity, and cash flows of Rock
Financial Corporation for the year ended December 31, 1998 have been audited by
KPMG LLP, independent auditors, as set forth in their report thereon that is
included in the Registrant's Form 10-K for the year ended July 31, 2000. The
report of KPMG LLP refers to a change in method of accounting for software
developed for internal use. Such financial statements are incorporated herein by
reference in reliance upon such report given upon the authority of such firm as
experts in accounting and auditing.
The validity of the issuance of the shares of Common Stock offered
hereby will be passed upon for the Registrant by Virginia R. Coles, Esq.,
Assistant General Counsel and Assistant Secretary of the Registrant. Ms. Coles
is an employee of the Registrant. As of January 4, 2001, Ms. Coles held 1,856
shares of Intuit's common stock and held options to purchase 36,315 shares of
Common Stock (of which 16,105 shares are exercisable within the next 60 days).
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by Section 145 of the Delaware General Corporation Law, the
Registrant's Certificate of Incorporation includes a provision that eliminates
the personal liability of its directors for monetary damages for breach or
alleged breach of their duty of care. In addition, as permitted by Section 145
of the Delaware General Corporation Law, the Registrant's Bylaws provide that:
(i) the Registrant is required to indemnify its directors and officers and
persons serving in such capacities at the Registrant's request in other business
enterprises (including, for example, subsidiaries of the Registrant), to the
fullest extent permitted by Delaware law, including those circumstances in which
indemnification would otherwise be discretionary; (ii) the Registrant may, in
its discretion, indemnify employees and agents in those circumstances where
indemnification is not required by law; (iii) the Registrant is required to
advance expenses, as incurred, to its directors and officers in connection with
defending a proceeding (except that it is not required to advance expenses to a
person against whom the Registrant brings a claim for breach of the duty of
loyalty, for an act or omission not in good faith, intentional misconduct, a
knowing violation of law or deriving an improper personal benefit from a
transaction); (iv) the rights conferred in the Bylaws are not exclusive and the
Registrant is authorized to enter into indemnification agreements with its
directors, officers and employees; and (v) the Registrant may not retroactively
amend the Bylaw provisions in a way that is adverse to such directors, officers
and employees.
The Registrant's policy is to enter into indemnity agreements with each
of its directors and officers that provide the maximum indemnity allowed to
directors and officers by Section 145 of the Delaware General Corporation Law
and the Bylaws, as well as certain additional procedural protections. In
addition, the indemnity agreements provide that directors and officers will be
indemnified to the fullest possible extent not prohibited by law against all
expenses (including attorney's fees) and settlement amounts paid or incurred by
them in any action or proceeding, by reason of their services as directors or
officers of the Registrant or as directors or officers of any other company or
enterprise when they are serving in such capacities at the request of the
Registrant. The Registrant will not be obligated pursuant to the agreements to
indemnify or advance expenses to an indemnified party with respect to
proceedings or claims initiated by the indemnified party and not by way of
defense, except with respect to proceedings specifically authorized by the Board
of Directors or brought to enforce a right of indemnification under the
indemnity agreements, the Registrant's Bylaws or any statute or law. Under the
agreements, the Registrant is not obligated to indemnify the indemnified party:
(i) for any expenses incurred by the indemnified party with respect to any
proceeding instituted by the indemnified party to enforce or interpret the
agreement, if a court of competent jurisdiction determines that each of the
material assertions made by the indemnified party in such proceeding was not
made in good faith or was frivolous; (ii) for any amounts paid in settlement of
a proceeding unless the Registrant consents to such settlement; (iii) with
respect to any proceeding or claim brought by the Registrant against the
indemnified party for willful misconduct, unless a court determines that each of
such claims was not made in good faith or was frivolous; (iv) on account of any
suit in which judgment is rendered against the indemnified party for an
accounting of profits made from the purchase or sale by the indemnified party of
securities of the Registrant pursuant to the provisions of Section 16(b) of the
Exchange Act and related laws; (v) on account of the indemnified party's conduct
which is finally adjudged to have been knowingly fraudulent or deliberately
dishonest, or to constitute willful misconduct or a knowing violation of the
law; (vi) on account of any conduct from which the indemnified party derived an
improper personal benefit; (vii) on account of conduct the indemnified party
believed to be contrary to the best interests of the Registrant or its
stockholders; (viii) on account of conduct that constituted a breach of the
indemnified party's duty of loyalty to the Registrant or its stockholders; or
(ix) if a final decision by a court having jurisdiction in the matter shall
determine that such indemnification is not lawful.
The indemnification provision in the Bylaws, and the indemnity
agreements entered into between the Registrant and its directors and officers,
may be sufficiently broad to permit indemnification of the Registrant's officers
and directors for liabilities arising under the Securities Act.
3
The indemnity agreements require the Registrant to maintain director and
officer liability insurance to the extent readily available. The Registration
currently carries a director and officer liability insurance policy.
ITEM 8. EXHIBITS.
- ---------------------------
(1) Filed as an exhibit to Intuit's Form 10-Q for the quarter ended April
30, 2000, filed with the Commission on June 14, 2000 and incorporated by
reference.
(2) Filed as an exhibit to Intuit's Registration Statement on Form S-8 (File
No. 333-92503) filed with the Commission on December 10, 1999, and
incorporated by reference.
(3) Filed as an exhibit to Intuit's Form 8-K filed with the Commission on
May 5, 1998 and incorporated by reference.
(4) Filed as an exhibit to Intuit's Form 10-K for the fiscal year ended July
31, 2000, filed with the Commission on October 13, 2000 and incorporated
by reference.
ITEM 9. UNDERTAKINGS
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;
4
(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. 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 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 volume
and price represent no more than a 20% 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 the Registration
Statement or any material change to such information in the
Registration Statement; provided, however, that paragraphs
(1)(i) and (1)(ii) above do not apply if the Registration
Statement is on Form S-3 or 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 with or furnished to the Commission 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.
(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.
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 Sections 13(a) or 15(d) of the Exchange Act, (and, where
applicable, each filing of an 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.
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 provisions described in Item 6 hereof, 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 hereby, 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.
5
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Mountain View, State of California, on January 4,
2001.
INTUIT INC.
By: /s/ GREG J. SANTORA
---------------------------------------
Greg J. Santora
Senior Vice President and
Chief Financial Officer
6
POWER OF ATTORNEY
By signing this Form S-8 below, I hereby appoint each of Stephen M.
Bennett and Greg J. Santora as my true and lawful attorneys-in-fact and agents,
in my name, place and stead, to sign any and all amendments (including
post-effective amendments) to this Form S-8 registration statement on my behalf,
and to file this Form S-8 registration statement (including all exhibits and
other documents related to the Form S-8 registration statement) with the
Securities and Exchange Commission. I authorize each of my attorneys-in-fact to
(1) appoint a substitute attorney-in-fact for himself and (2) perform any
actions that he believes are necessary or appropriate to carry out the intention
and purpose of this Power of Attorney. I ratify and confirm all lawful actions
taken directly or indirectly by my attorneys-in-fact and by any properly
appointed substitute attorneys-in-fact. 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.
PRINCIPAL EXECUTIVE OFFICER:
EXHIBIT INDEX