S-8: Initial registration statement for securities to be offered to employees pursuant to employee benefit plans
Published on August 17, 1999
As filed with the Securities and Exchange Commission on ______, 1999
Registration No. __________
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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 number)
2535 GARCIA AVENUE
MOUNTAIN VIEW, CALIFORNIA 94043
(Address of principal executive offices, including zip code)
OPTIONS GRANTED UNDER THE HUTCHISON AVENUE SOFTWARE CORPORATION STOCK OPTION
PLAN DATED JUNE 29, 1999 AND ASSUMED BY INTUIT INC.
(Full title of the plan)
CATHERINE L. VALENTINE, ESQ.
INTUIT INC.
P.O. BOX 7850, M.S. 52028
MOUNTAIN VIEW, CALIFORNIA 94039-7850
(650) 944-6656
(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
(1) Shares subject to options assumed as of August 10, 1999.
(2) Weighted average per share exercise price of outstanding options assumed
as of August 10, 1999.
(3) Fee calculated pursuant to Section 6(b) of the Securities Act of 1933,
as amended.
INTUIT INC.
REGISTRATION STATEMENT ON FORM S-8
PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This registration statement relates to 131,686 shares of Common
Stock, $0.01 par value per share, of the Registrant, reserved for issuance on
exercise of options granted under The Hutchison Avenue Software Corporation
Stock Option Plan dated June 29, 1999. The options were assumed by the
Registrant in connection with its acquisition of The Hutchison Avenue Software
Corporation on August 10, 1999, in accordance with the terms of The Hutchison
Avenue Software Corporation Share Purchase Agreement dated June 30, 1999.
ITEM 3 INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(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 4 DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5 INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the issuance of the shares of Common Stock offered
hereby will be passed upon for the Registrant by Catherine L. Valentine, Esq.,
Vice President, General Counsel and Secretary of the Registrant. As of August
10, 1999, Ms. Valentine held options to purchase 37,085 shares of Common Stock
(of which 4,947 shares are exercisable within the next 60 days).
The consolidated financial statements and schedule of Registrant
appearing in Registrant's Annual Report (Form 10-K) for the year ended July 31,
1998, have been audited by Ernst & Young LLP, independent auditors, as set forth
in their report thereon included therein and are 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.
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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 Bylaws of the Registrant provide
that: (i) the Registrant is required to indemnify its directors and officers and
persons serving in such capacities in other business enterprises (including, for
example, subsidiaries of the Registrant) at the Registrant's request, 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 executive officers that provide the maximum indemnity
allowed to directors and executive 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
executive 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 executive 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 executive
officers, may be sufficiently broad to permit indemnification of the
Registrant's officers and directors for liabilities arising under the Securities
Act.
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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 insurance policy.
ITEM 7 EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8 EXHIBITS
4.01 The Hutchison Avenue Software Corporation Stock Option Plan dated
June 29, 1999
4.02 Form of Stock Option Grant Agreement for use under The Hutchison
Avenue Software Corporation Stock Option Plan dated June 29, 1999
4.03 Form of Assumption Agreement
4.04(1) Certificate of Incorporation of Intuit dated February 1, 1993
4.05(2) Certificate of Amendment to Intuit's Certificate of Incorporation
dated December 14, 1993
4.06(3) Certificate of Amendment to Intuit's Certificate of Incorporation
dated January 18, 1996
4.07(4) Certificate of Designations of Series B Junior Participating
Preferred Stock dated May 1, 1998
4.08(5) Amended and Restated Rights Agreement, dated October 5, 1998
4.09(5) Certificate of Retirement of Series A Preferred Stock dated September
16, 1998
4.10(6) Bylaws of Intuit, as amended and restated effective April 29, 1998
4.11(5) Form of Specimen Certificate for Intuit's Common Stock
4.12(5) Form of Right Certificate for Series B Junior Participating Preferred
Stock
5.01 Opinion of Counsel
23.01 Consent of Counsel (included in Exhibit 5.01)
23.02 Consent of Ernst & Young LLP, Independent Auditors
24.01 Power of Attorney (see page 8)
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(1) Filed as an exhibit to Intuit's Registration Statement on Form S-1, filed
with the Commission on February 3, 1993, as amended (File No. 33-57884), and
incorporated by reference.
(2) Filed as an exhibit to Intuit's Form 10-K as originally filed with the
Commission on October 31, 1994, as amended, and incorporated by reference.
(3) Filed as an exhibit to Intuit's Form 10-Q for the quarter ended January 31,
1996, filed with the Commission on March 15, 1996 and incorporated by
reference.
(4) Filed as an exhibit to Intuit's Registration Statement on Form 8-A filed
with the Commission on May 5, 1998 and incorporated by reference.
(5) Filed as an exhibit to Intuit's Form 10-K for the fiscal year ended July 31,
1998, filed with the Commission on October 6, 1998 and incorporated by
reference.
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(6) Filed as an exhibit to Intuit's Form 8-K filed with the Commission on May 2,
1998 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;
(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 twenty percent (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
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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.
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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 Mountain View, State of California, on August
10, 1999.
INTUIT INC.
By: /s/ Greg J. Santora
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Greg J. Santora
Senior Vice President and Chief
Financial Officer
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POWER OF ATTORNEY
By signing this Form S-8 below, I hereby appoint each of William H.
Harris, Jr. 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.
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(1) Filed as an exhibit to Intuit's Registration Statement on Form S-1, filed
with the Commission on February 3, 1993, as amended (File No. 33-57884), and
incorporated by reference.
(2) Filed as an exhibit to Intuit's Form 10-K as originally filed with the
Commission on October 31, 1994, as amended, and incorporated by reference.
(3) Filed as an exhibit to Intuit's Form 10-Q for the quarter ended January 31,
1996, filed with the Commission on March 15, 1996 and incorporated by
reference.
(4) Filed as an exhibit to Intuit's Registration Statement on Form 8-A filed
with the Commission on May 5, 1998 and incorporated by reference.
(5) Filed as an exhibit to Intuit's Form 10-K for the fiscal year ended July 31,
1998, filed with the Commission on October 6, 1998 and incorporated by
reference.
(6) Filed as an exhibit to Intuit's Form 8-K filed with the Commission on May 2,
1998 and incorporated by reference.