As filed with the Securities and Exchange Commission on May 24, 2002
Registration No. 333-______
--------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
HOMESTORE, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 95-4438337
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
30700 Russell Ranch Road
Westlake Village, California 91362
(Address of Principal Executive Offices, including Zip Code)
Homestore.com, Inc. 2002 Stock Incentive Plan
(Full Title of the Plans)
W. Michael Long
Chief Executive Officer
Homestore, Inc.
30700 Russell Ranch Road
Westlake Village, California 91362
(805) 557-2300
(Name, Address and Telephone Number of Agent For Service)
Copies to:
Walter Lowry
CALCULATION OF REGISTRATION FEE
==========================================================================================================================
Amount Proposed Maximum Proposed Maximum Amount of
to be Offering Price Aggregate Registration
Title of Securities to be Registered Registered Per Share Offering Price Fee
==========================================================================================================================
Common Stock, $0.001 par value 10,763,439 (1) $1.86 (2) $ 20,019,997 $ 1,842
--------------------------------------------------------------------------------------------------------------------------
Common Stock, $0.001 par value 4,236,561 (3) $1.97 (4) $ 8,346,025 $ 768
--------------------------------------------------------------------------------------------------------------------------
Total 15,000,000 -- $ 28,366,022 $ 2,610
==========================================================================================================================
(1) Represents shares subject to outstanding options as of May 14, 2002.
(2) Weighted average per share exercise price of such outstanding options
pursuant to Rule 457(h)(1).
(3) Represents additional shares reserved for issuance under the Homestore, Inc.
2002 Stock Incentive Plan.
(4) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) under the Securities Act of 1933, and based upon
an average of the high and low sales price as reported on the Nasdaq
National Market on May 15, 2002.
(5) This registration statement shall cover any additional shares of common
stock which become issuable under the assumed options or assumed plan by
reason of any stock dividend, stock split, recapitalization or any other
similar transactions without receipt of consideration which results in an
increase in the number of shares of the Registrant's outstanding common
stock.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
--------------------------------------------------
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) Our Current Report on Form 8-K/A filed with the SEC on May 24, 2002;
(b) Our Current Report on Form 8-K filed with the SEC on April 8, 2002;
(c) Our Quarterly Report on Form 10-Q for the quarter ended March 31, 2002;
(d) Our Annual Report on Form 10-K for the fiscal year ended December 31, 2001;
(e) Our Registration Statement on Form 8-A filed with the SEC on July 9, 1999;
(f) 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, and the description of
the Registrant's common stock set forth under the caption "Description of
Capital Stock" on pages 78 through 83 of the prospectus included in
Registrant's registration statement on Form S-1, File No. 333-79689, filed
May 28, 1999, and any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by 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 registered 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.
Not applicable.
Item 6. Indemnification of Directors and Officers and Limitation of Liability.
Section 145 of the Delaware General Corporation Law authorizes a court to
award, or a corporation's board of directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities (including reimbursement for
expenses incurred) arising under the Securities Act.
As permitted by Section 145 of the Delaware General Corporation Law,
Registrant's Amended and Restated Certificate of Incorporation ("Certificate of
Incorporation") includes a provision that eliminates the personal liability of
its directors for monetary damages for breach of fiduciary duty as a director,
except for liability:
. for any breach of the director's duty of loyalty to Registrant or its
stockholders,
-2-
. for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
. under Section 174 of the Delaware General Corporation Law regarding
unlawful dividends and stock purchases; and
. for any transaction from which the director derived an improper personal
benefit.
As permitted by the Delaware General Corporation Law, Registrant's Amended
and Restated Bylaws ("Bylaws") provide that:
. Registrant is required to indemnify its directors and officers to the
fullest extent permitted by the Delaware General Corporation Law,
subject to limited exceptions;
. Registrant may indemnify its other employees and agents to the extent
that it indemnifies its officers and directors, unless otherwise
required by law, its certificate of incorporation, its bylaws or
agreements to which it is a party;
. Registrant is required to advance expenses, as incurred, to its
directors and officers in connection with a legal proceeding to the
fullest extent permitted by the Delaware General Corporation Law,
subject to limited exceptions; and
. the rights conferred in the Bylaws are not exclusive.
Registrant has entered into Indemnity Agreements with each of its current
directors and officers to give such directors and officers additional
contractual assurances regarding the scope of the indemnification set forth in
Registrant's Certificate of Incorporation and to provide additional procedural
protections. Beginning in December 2001, numerous separate complaints purporting
to be class actions were filed in various jurisdictions alleging that we and
certain of our officers and directors violated certain provisions of the
Securities Exchange Act of 1934, as amended. The complaints contain varying
allegations, including that we made materially false and misleading statements
with respect to our 2000 and 2001 financial results in our filings with the SEC,
analysts reports, press releases and media reports. The complaints seek an
unspecified amount of damages. On March 27, 2002, the California State Teacher's
Retirement System was named lead plaintiff and the complaints have been
consolidated in the United States District Court, Central District of
California. All of Homestore's officers and directors that were officers and
directors at the time pertaining to the allegations are seeking indemnification
from the Company for these actions.
Reference is also made to Section 7 of the Underwriting Agreement relating
to Registrant's initial public offering, effected pursuant to a registration
statement on Form S-1 (File No. 333-79689), which provides for the
indemnification of officers, directors and controlling persons of Registrant
against certain liabilities. The indemnification provision in Registrant's
Certificate of Incorporation, Bylaws and the Indemnity Agreements entered into
between Registrant and each of its directors and officers may be sufficiently
broad to permit indemnification of Registrant's directors and officers for
liabilities arising under the Securities Act.
Registrant maintains directors' and officers' liability insurance.
See also the undertakings set out in response to Item 9.
Reference is also made to the following documents regarding relevant
indemnification provisions described above and elsewhere herein:
Document
--------
Registrant's Amended and Restated Certificate of Incorporation.
Registrant's Amended and Restated Bylaws.
Item 7. Exemption from Registration Claimed.
Not applicable.
-3-
Item 8. Exhibits.
Exhibit Number Exhibit Title
-------------- ---------------
4.01 Registrant's Amended and Restated Certificate of Incorporation
(incorporated by reference to Exhibit 3.02 to the Form S-1 (File
No.333-79689)).
4.02 Registrant's Amended and Restated Bylaws (incorporated by
reference to Exhibit 3.04 to the Form S-1 (File No.333-79689)).
4.03 Form of Specimen Certificate for Registrant's common stock
(incorporated by reference to Exhibit 4.01 to the Form S-1 (File
No.333-79689)).
4.04 Homestore.com, Inc. 2002 Stock Incentive Plan.
5.01 Opinion of Counsel.
23.01 Consent of PricewaterhouseCoopers LLP, independent accountants.
24.01 Power of Attorney (see page 6).
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:
(a) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(b) 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; and
(c) 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)(a) and (1)(b) above do not apply if 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 by 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.
(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.
-4-
(4) That, for purposes of determining any liability under the Securities
Act, each filing of Registrant's annual report pursuant to Section 13(a) or
Section 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.
---------
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of Registrant pursuant to the provisions discussed in Item 6 hereof, or
otherwise, Registrant has been advised that in the opinion of the 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 Registrant of expenses
incurred or paid by a director, officer or controlling person of 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, 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 of 1933, 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 Westlake Village, State of California, on this 24th
day of May, 2002.
HOMESTORE, INC.
By: /s/ Lewis R. Belote, III
------------------------
Lewis R. Belote, III
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints Lewis R. Belote, III and W. Michael Long
and each of them, his true and lawful attorney-in-fact and agent with full power
of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this registration statement on Form S-8, and to file the same with all
exhibits thereto and all documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorney-in-fact and agent, and each
of them, 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 he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his substitute or
substitutes, 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 Title Date
--------- ----- -----
Principal Executive Officer:
/s/ W. Michael Long Chief Executive May 24, 2002
---------------------------------------- Officer and Director
W. Michael Long
Principal Financial Officer and
Principal Accounting Officer
/s/ Lewis R. Belote, III Chief Financial Officer May 24, 2002
----------------------------------------
Lewis R. Belote, III
Additional Directors
Chairman of the Board and
/s/ Joe F. Hanauer Director May 24, 2002
----------------------------------------
Joe F. Hanauer
/s/ L. John Doerr Director May 24, 2002
----------------------------------------
L. John Doerr
/s/ William E. Kelvie Director May 24, 2002
----------------------------------------
William E. Kelvie
/s/ Kenneth K. Klein Director May 24, 2002
----------------------------------------
Kenneth K. Klein
/s/ Terrence M. McDermott Director May 24, 2002
----------------------------------------
Terrence McDermott
/s/ Barbara T. Alexander Director May 24, 2002
----------------------------------------
Barbara T. Alexander
-6-
EXHIBIT INDEX
-------------
Exhibit Exhibit
Number Title
------- -----
4.01 Registrant's Amended and Restated Certificate of Incorporation (incorporated by reference to
Exhibit 3.02 to the Form S-1 (File No.333-79689)).
4.02 Registrant's Amended and Restated Bylaws (incorporated by reference to Exhibit 3.04 to the Form
S-1 (File No.333-79689)).
4.03 Form of Specimen Certificate for Registrant's common stock (incorporated by reference to Exhibit
4.01 to the Form S-1 (File No.333-79689)).
4.04 Homestore.com, Inc. 2002 Stock Incentive Plan.
5.01 Opinion of Counsel.
23.01 Consent of PricewaterhouseCoopers LLP, independent accountants.
24.01 Power of Attorney (see page 6).
-----------------