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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ETINUUM,INC
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(Exact name of registrant as specified in its charter)
Delaware 84-1334615
- ------------------------- ----------------------
(State or other juris- (I.R.S. Employer
diction of incorporation Identification No.)
or organization)
5619 DTC Parkway, 12th Floor, Englewood, CO 80111
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(Address of Principal Executive Offices) (Zip Code)
2000 EMPLOYEE STOCK PURCHASE PLAN
2000 STOCK INCENTIVE PLAN
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1998 RESTATED STOCK OPTION PLAN
1997 AMENDED AND RESTATED STOCK OPTION PLAN
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(Full title of the plan)
Timothy C. O'Crowley
ETINUUM, INC.
5619 DTC Parkway, 12th Floor
Englewood, CO 80111
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(Name and address of agent for service)
(303) 357-3000
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(Telephone number, including area code of agent for service)
Copies to:
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Laurie P. Glasscock, Esq.
Chrisman, Bynum & Johnson, P.C.
1900 Fifteenth Street
Boulder, CO 80302
(303) 546-1300
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of securities to Amount to be offering price per aggregate offering Amount of
be registered registered(1) share price registration fee
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<S> <C> <C> <C> <C>
Options and 2,407,013 $ 7.66 (2) $18,437,720 (2) $ 4,868
underlying
Common Stock,
$.0001 par value,
issued under the
Amended and
Restated 1997
Stock Option Plan
Options and 1,560,645 $ 7.67 (2) $11,970,147 (2) $ 3,161
underlying
Common Stock,
$.0001 par value,
issued under the
Restated 1998
Stock Option Plan
Common Stock, 2,750,000 $12.38 (3) $34,045,000 (3) $ 8,988
$.0001 par value,
available for
issuance under the
2000 Stock
Incentive Plan
Common Stock, 2,000,000 $12.38 (4) $24,760,000 (4) $ 6,537
$.0001 par value, to
be issued under the
2000 Employee
Stock Purchase
Plan ______________ ______________
Total: $89,212,867 $23,554
============== ==============
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under any of the Plans being registered
pursuant to this Registration Statement by reason of any stock dividend,
stock split, recapitalization or any other similar transaction effected
without the receipt of consideration which results in an increase in the
number of the Registrant's outstanding shares of Common Stock.
(2) Estimated in accordance with Rule 457(h) promulgated under the Securities
Act of 1933, as amended, solely for the purpose of calculating the amount
of the registration fee based on the weighted average exercise price per
share covering authorized and outstanding options and underlying Common
Stock under the Amended and Restated 1997 Stock Option Plan or the 1998
Restated Stock Option Plan, as the case may be.
(3) Estimated in accordance with Rule 457(h) promulgated under the Securities
Act of 1933, as amended, solely for the purpose of calculating the amount
of the registration fee on the basis of the average of the high and low
price per share of Common Stock on the Nasdaq National Market on March 27,
2000.
(4) Estimated in accordance with Rule 457(h) promulgated under the Securities
Act, as amended, solely for the purpose of calculating the amount of the
registration fee based on 85% of the average of the high and low price per
share of Common Stock (the price at which Common Stock may be sold to
employees pursuant to the terms of this Plan) on the Nasdaq National Market
on March 27, 2000.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Etinuum, Inc. (the "Registrant") with the
Securities and Exchange Commission (the "Commission") are incorporated by
reference herein:
(a) The Registrant's prospectus filed on March 24, 2000 pursuant to Rule
424(b) of the Securities Act of 1933, as amended (the "Securities
Act"), which contains audited financial statements for the Registrant's
latest fiscal year for which such statements have been filed.
(b) The description of the Common Stock which is contained in the
Registrant's Registration Statement filed on Form 8-A with the
Commission under the Securities Exchange Act of 1934, as amended (the
Exchange Act") on March 21, 2000, including any amendment or report
filed for the purpose of updating such description.
All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14
and 15(d) of the Exchange Act after the date of this Registration Statement and
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 to be incorporated by reference into this
Registration Statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
The validity of the securities being registered by this Registration
Statement is being passed upon for the Registrant by Chrisman, Bynum & Johnson,
P.C., Boulder, Colorado. A limited liability company composed of stockholders
of Chrisman, Bynum & Johnson, P.C. owns 16,611 shares of the Registrant's Common
Stock.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law authorizes a court to
award, and permits a corporation to grant, indemnity to current or former
directors and executive officers, and others acting in similar capacities at the
request of the company. This permitted indemnification may extend beyond the
scope of that provided under Delaware law, including under certain circumstances
for liabilities (including reimbursement for expenses incurred) arising under
the Act.
As permitted by the Delaware General Corporation Law, the Registrant's
Amended and Restated 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 (i) for any breach
of the director's duty of loyalty to the Registrant or its stockholders, (ii)
for acts or omissions not in good faith or that involve intentional misconduct
or a knowing violation of law, (iii) under section 174 of the Delaware General
Corporation Law (regarding unlawful dividends and stock purchases) or (iv) for
any transaction from which the director derived an improper personal benefit.
The Registrant's Amended and Restated Certificate of Incorporation permits
indemnification of current and former directors and executive officers to the
maximum extent allowed by applicable law. This limitation of liability does not
apply to liabilities of the Registrant's directors arising under the federal
securities laws and does not affect the availability of equitable remedies such
as injunctive relief or rescission.
The Registrant's Bylaws provide that, to the full extent allowed by
Delaware General Corporation Law, (i) the Registrant will indemnify its
directors and officers, provided that any indemnified officer and director acted
in good faith and in a manner which such officer and director reasonably
believed to be in or not opposed to the Registrant's best interests, (ii) the
Registrant may indemnify its other employees and agents, (iii) the Registrant
will advance expenses, as incurred, to its directors and officers in connection
with a legal proceeding, subject to certain very limited exceptions, and (iv)
the Registrant may purchase and maintain insurance on behalf of any director or
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officer against any liability asserted against them in such capacity. The rights
conferred in the Bylaws are not exclusive of indemnification provided by law,
agreement or otherwise.
As permitted by Delaware General Corporation Law, the Registrant has
entered into indemnification 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 the Registrant's Amended
and Restated Certificate of Incorporation and to provide additional procedural
protections. These agreements provide for indemnification against claims and
liabilities arising as a result of their service as directors or officers of the
Registrant and the advancement of expenses incurred by them in defending or
litigating such claims. The Registrant believes that these agreements, and the
indemnification provisions in its Amended and Restated Certificate of
Incorporation and Bylaws, are sufficiently broad to permit indemnification
against claims involving the negligence or gross negligence of, and violations
of the Securities Act by, the covered directors and officers.
The Registrant has obtained a policy of directors' and officers' liability
insurance that insures the Registrant's directors and officers against the cost
of defense, settlement or payment of a judgment under certain circumstances.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit No. Description of Exhibit
- ----------- ----------------------
5.1 Opinion of Chrisman, Bynum & Johnson, P.C.
23.1 Consent of Chrisman, Bynum & Johnson, P.C. (included in
Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP
23.3 Consent of PricewaterhouseCoopers LLP
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 this 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; and
(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.
(2) That, for the purpose of determining 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.
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(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, each filing of the
Registrant's annual report pursuant to section 13(a) or 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.
(c) 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 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
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, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to the 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 Englewood, State of Colorado, on March 27, 2000.
ETINUUM, INC.
By: /s/ Timothy C. O'Crowley
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Timothy C. O'Crowley, President
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/ Timothy C. O'Crowley Chairman of the Board, President, Chief March 27, 2000
- --------------------------- Executive Officer and Director (Principal
Timothy C. O'Crowley Executive Officer)
/s/ Steven Q. Hansen Chief Financial Officer (Principal Financial March 27, 2000
- --------------------------- and Accounting Officer)
Steven Q. Hansen
- --------------------------- Director March __, 2000
Stephen S. Hyde
- --------------------------- Director March __, 2000
Steven F. Piaker
/s/ Harold W. Pote
- --------------------------- Director March 27, 2000
Harold W. Pote
/s/ Rick L. Weller
- --------------------------- Director March 27, 2000
Rick L. Weller
/s/ Eric R. Wilkinson
- --------------------------- Director March 27, 2000
Eric R. Wilkinson
</TABLE>
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Exhibit 5.1
March 27, 2000
Etinuum, Inc.
5619 DTC Parkway, 12th Floor
Englewood, CO 80111
Re: S-8 Registration Statement
Gentlemen:
At your request, we have examined the Registration Statement on Form S-8
executed by you on March 27, 2000, and to be filed with the Securities and
Exchange Commission (the "SEC") in connection with the registration under the
Securities Act of 1933, as amended, of an aggregate of 8,717,658 shares of your
common stock, $.0001 par value per share (the "Common Stock") which will be
issuable under the Etinuum, Inc. 2000 Employee Stock Purchase Plan, 2000 Stock
Incentive Plan, 1998 Restated Stock Option Plan and 1997 Amended and Restated
Stock Option Plan (the "Plans").
As your counsel in connection with the Registration Statement, we have examined
the proceedings taken by you in connection with the adoption of the Plans, the
reservation of shares of Common Stock for issuance under the Plans (the "Plan
Shares"), the options previously granted pursuant to the Plans and such
documents as we have deemed necessary to render this opinion.
Based upon the foregoing, it is our opinion that the Plan Shares, when issued
and outstanding pursuant to the terms of the Plans, will be validly issued,
fully paid and non-assessable shares of Common Stock pursuant to the Delaware
General Corporation Law.
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
CHRISMAN, BYNUM & JOHNSON, P.C.
March 27, 2000
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Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to incorporation by
reference in this registration statement of our report dated January 13, 2000
(except with respect to the matters discussed in Note 14, as to which the date
is March 20, 2000) in Etinuum, Inc.'s Form S-1 (Registration Statement File No.
333-94755) and all references to our Firm included in this registration
statement.
Arthur Andersen LLP
Denver, Colorado
March 28, 2000
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Exhibit 23.3
The Board of Directors
Etinuum, Inc.:
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of Etinuum, Inc. of our report dated June 28, 1999, except
for the second and third paragraphs of Note 10 referencing the proposed
acquisition by Etinuum, Inc., which is as of July 16, 1999, relating to the
financial statements of Acorn Information Services, Inc., which appears in the
Form S-1 of Etinuum, Inc. (No. 333-94755), dated March 23, 2000.
PriceWaterhouseCoopers LLP
Stamford, Connecticut
March 27, 2000
