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As filed with the Securities and Exchange Commission on April 8, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
FIRST VIRTUAL HOLDINGS INCORPORATED
(Exact name of Registrant as specified in its charter)
Delaware 33-0612860
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
11975 El Camino Real, Suite 200
San Diego, California 92130-2543
(Address, including zip code, of Registrant's principal executive offices)
1994 INCENTIVE AND NON-STATUTORY STOCK OPTION PLAN
1995 STOCK PLAN
EMPLOYEE STOCK PURCHASE PLAN
(Full titles of the plans)
LEE H. STEIN
Chairman of the Board and Chief Executive Officer
FIRST VIRTUAL HOLDINGS INCORPORATED
11975 El Camino Real, Suite 200
San Diego, California 92130-2543
(619) 793-2700
(Name, address, and telephone number, including area code, of agent for
service)
Copy to:
JEFFREY D. SAPER, ESQ.
JOHN T. SHERIDAN, ESQ.
WILSON, SONSINI, GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(415) 493-9300
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================================================
Amount Proposed Maximum Proposed Maximum Amount of
Title of Securities to to be Offering Price Aggregate Registration
be Registered Registered Per Share (1) Offering Price(2) Fee
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
$0.01 par value Common Stock 3,547,525 $5.29/sh $18,772,825 $5,689
============================================================================================================================
</TABLE>
(1) Includes 454,375 shares to be registered under the 1994 Incentive and
Non-statutory Stock Option Plan (the "1994 Plan"), 2,993,150 shares to be
registered under the 1995 Stock Plan (the "1995 Plan"), and 100,000 shares
to be registered under the Employee Stock Purchase Plan (the "Purchase
Plan").
(2) The Proposed Maximum Offering Price Per Share was estimated in part
pursuant to Rule 457(h) under the Securities Act of 1933, as amended (the
"Act"), and, in part, pursuant to Rule 457(c) under the Act. With respect
to (i) 454,375 shares which are subject to outstanding options to purchase
Common Stock under the 1994 Plan or which were issued upon exercise of
options granted under the 1994 Plan following the date of the Company's
initial public stock offering pursuant to the Securities Act of 1933, as
amended (the "IPO") and (ii) 1,334,962 shares which are subject to
outstanding options to purchase Common Stock under the 1995 Plan, the
Proposed Maximum Offering Price Per Share was estimated pursuant to Rule
457(h) under which Rule the per share price of options to purchase stock
under an employee stock option plan may be estimated by reference to the
exercise price of such options. The weighted average exercise price of the
454,375 shares subject to outstanding options under the 1994 Plan or which
were issued upon exercise of options granted under the 1994 Plan following
the date of the IPO is $0.052. The weighted average exercise price of the
1,334,962 shares subject to outstanding options under the 1995 Plan is
$6.594. With respect to (i) 1,658,188 shares of Common Stock available for
future grant under the 1995 Plan and (ii) 100,000 shares of Common Stock
available for future grant under the Purchase Plan, the estimated Proposed
Maximum Offering Price Per Share was estimated pursuant to Rule 457(c)
whereby the per share price was determined by reference to the closing
price reported in the Nasdaq National Market on April 4, 1997, which was
$6.00. The number referenced above in the table entitled "Proposed Maximum
Offering Price per Share" represents a weighted average of the foregoing
estimates calculated in accordance with Rules 457(h) and 457(c).
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FIRST VIRTUAL HOLDINGS INCORPORATED
REGISTRATION STATEMENT ON FORM S-8
PART II - INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
There are hereby incorporated by reference into this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission (the "Commission"):
1. The Registrant's Prospectus filed with the Commission on December
13, 1996 pursuant to Rule 424(b) promulgated under the Securities Act of 1933,
as amended.
2. The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996 filed with the Commission pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended.
3. The description of the Registrant's Common Stock to be offered
hereby is contained in the Registrant's Registration Statement on Form 8-A
dated November 19, 1996 filed pursuant to Section 12 of the Securities Exchange
Act of 1934, as amended.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 after the date
hereof, and prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference herein
and to be part hereof from the date of 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 being
registered hereby are being passed upon for the Registrant by Wilson, Sonsini,
Goodrich & Rosati, Professional Corporation, Palo Alto, California. An
investment partnership of which members of Wilson, Sonsini, Goodrich & Rosati
are partners beneficially owns 27,000 shares of the Registrant's Common Stock.
Item 6. Indemnification of Directors and Officers
Section 145(a) of the Delaware General Corporation Law (the "DGCL")
provides in relevant part that "[a] corporation may 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, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
corporation) by reason of the fact that he is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed
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to be in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful." With respect to derivative actions, Section
145(b) of the DGCL provides in relevant part that "[a] corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of
the corporation to procure a judgment in its favor . . . [by reason of his
service in one of the capacities specified in the preceding sentence] against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only to the
extent that the Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expense which the Court of
Chancery and such other court shall deem proper."
Article Ten of the Company's Certificate of Incorporation states that to
the fullest extent permitted by DGCL, no director of the Registrant shall be
personally liable to the Registrant or its stockholders for monetary damages
for breach of fiduciary duty as a director.
Article V of the Registrant's Bylaws provides that the Company may
indemnify each person who is or was a director of the Company to the full
extent permitted by the DGCL. Such Article also provides that the Registrant
may, but is not required to, indemnify its employees and agents (other than
directors and officers) to the extent and in the manner permitted by the DGCL.
The Registrant has entered into an indemnification agreement with each
of its directors and officers and intends to maintain insurance for the benefit
of its directors and officers insuring such persons against certain
liabilities, including liabilities under the securities laws.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
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<CAPTION>
Exhibit
Number Document
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<S> <C>
4.1 Registrant's 1994 Incentive and Nonstatutory Stock Option Plan.*
4.2 Registrant's 1995 Stock Plan.*
4.3 Registrant's Employee Stock Purchase Plan.*
5.1 Opinion of counsel as to legality of securities being registered.
23.1 Consent of Ernst & Young, LLP, Independent Auditors.
23.2 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page II-5).
</TABLE>
____________________
(*) Previously filed as exhibit to Registrant's registration
statement on Form S-1 (SEC Registration No. 333-14573).
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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 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;
(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 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, as amended may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the items described in Item 6
of Part II of this Registration Statement, 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 of
1933 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
Securities Act of 1933 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, First Virtual Holdings Incorporated, 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 San Diego,
State of California, on the 8th day of April, 1997.
FIRST VIRTUAL HOLDINGS INCORPORATED
By: /s/ LEE H. STEIN
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Lee H. Stein, Chairman and
Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Lee H. Stein and John M. Stachowiak and
each of them, acting individually, as his or her attorney-in-fact, with full
power of substitution, for him or her and in any and all capacities, to sign
any and all amendments to this Registration Statement (including post-effective
amendments) and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming our signatures as they may be signed by our said
attorney to any and all amendments to the Registration Statement.
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.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ LEE H. STEIN Chairman and Chief Executive Officer April 8, 1997
- ---------------------------------- and Director (Principal Executive
Lee H. Stein Officer)
/s/ JOHN M. STACHOWIAK Vice President, Finance, Administrative April 8, 1997
- ---------------------------------- and Chief Financial Officer (Principal
John M. Stachowiak Financial and Accounting Officer)
/s/ ROBERT S. EPSTEIN Director April 8, 1997
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Robert S. Epstein
Director
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Tawfiq N. Khoury
/s/ SCOTT LOFTESNESS Director April 8, 1997
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Scott Loftesness
/s/ JOHN A. MCKINLEY Director April 8, 1997
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John A. McKinley
/s/ PAMELA H. PATSLEY Director April 8, 1997
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Pamela H. Patsley
Director
- ----------------------------------
Jon Rubin
</TABLE>
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FIRST VIRTUAL HOLDINGS INCORPORATED
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Description Page
- -------- --------------------------------------------------------------- ------------
<S> <C>
4.1 Registrant's 1994 Incentive and Nonstatutory Stock Option Plan.* . .
4.2 Registrant's 1995 Stock Plan.* . . . . . . . . . . . . . . . . . . .
4.3 Registrant's Employee Stock Purchase Plan.* . . . . . . . . . . . .
5.1 Opinion of counsel as to legality of securities being
registered . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
23.1 Consent of Ernst & Young, LLP, Independent Auditors . . . . . . . .
23.2 Consent of Counsel (contained in Exhibit 5.1) . . . . . . . . . . .
24.1 Power of Attorney (see page II-5) . . . . . . . . . . . . . . . . .
</TABLE>
__________________________
(*) Previously filed as exhibit to Registrant's registration
statement on Form S-1 (SEC Registration No. 333-14573).
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EXHIBIT 5.1
April 8, 1997
First Virtual Holdings Incorporated
11975 El Camino Real, Suite 300
San Diego, CA 92130-2543
Re: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined (i) the Registration Statement on Form S-8 (the
"Registration Statement") to be filed by First Virtual Holdings Incorporated, a
Delaware corporation (the "Company" or "you"), with the Securities and Exchange
Commission on or about April 8, 1997 in connection with the registration under
the Securities Act of 1933, as amended (the "Act"), of an aggregate of: (A)
454,375 shares of your Common Stock (the "Common Stock"), reserved for issuance
pursuant to the Company's 1994 Incentive and Non-Statutory Stock Option Plan
(the "1994 Plan"), (B) 2,993,150 shares of Common Stock reserved for issuance
under the Company's 1995 Stock Plan (the "1995 Plan"), and (C) 100,000 shares of
Common Stock reserved for issuance under the Company's Employee Stock Purchase
Plan (the "Purchase Plan") (all such shares of Common Stock being hereinafter
referred to as the "Shares"), and (ii) the Prospectuses to be dated on or about
April 8, 1997 that relate to the 1994 Plan, the 1995 Plan and the Purchase Plan
and to such Registration Statement pursuant to Rule 428(a)(1) promulgated under
the Act (the "Prospectuses"). As your legal counsel, we have reviewed the
actions proposed to be taken by you in connection with the proposed sale and
issuance of the Shares by the Company under the 1994 Plan, the 1995 Plan and the
Purchase Plan.
It is our opinion that, upon completion of the actions being taken, or
contemplated by us as your counsel to be taken, by you prior to the issuance of
the Shares pursuant to the Registration Statement, the Prospectuses and the
1994 Plan, the 1995 Plan and the Purchase Plan, the Shares will be legally and
validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the
Registration Statement, and further consent to the use of our name wherever
appearing in the Registration Statement, the Prospectuses and any subsequent
amendment thereto.
Very truly yours,
WILSON, SONSINI, GOODRICH & ROSATI
Professional Corporation
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EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the 1994 Incentive and Non-Statutory Stock
Option Plan, the 1995 Stock Plan and the Employee Stock Purchase Plan of First
Virtual Holdings Incorporated of our report dated January 24, 1996, with
respect to the financial statements included in the Annual Report (Form 10-K)
for the year ended December 31, 1996.
ERNST & YOUNG, LLP
San Diego, California
April 4, 1997
