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As filed with the Securities and Exchange Commission on June 15, 2000.
Registration No. 333-33038
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
Post-Effective
Amendment No. 1
to
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------
AUTOBYTEL.COM INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 33-0711569
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
18872 MACARTHUR BOULEVARD
IRVINE, CALIFORNIA 92612-1400
(Address of Principal Executive Offices) (Zip Code)
AUTOBYTEL.COM INC. RETIREMENT SAVINGS PLAN
(Full title of the plan)
ARIEL AMIR
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
18872 MACARTHUR BOULEVARD
IRVINE, CALIFORNIA 92612-1400
(Name and address of agent for service)
(949) 225-4500
(Telephone number, including area code, of agent for service)
COPIES TO:
THOMAS R. POLLOCK, ESQ.
PAUL, HASTINGS, JANOFSKY & WALKER LLP
345 CALIFORNIA STREET
SAN FRANCISCO, CA 94104-2635
TELEPHONE: (415) 835-1600
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
======================================================================================================================
Proposed
Proposed Maximum Amount of
Amount To Be Maximum Offering Aggregate Registration
Title of Securities To Be Registered Registered Price Per Share Offering Price Fee
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<S> <C> <C> <C> <C>
Common Stock, par value $0.001................ (1) (1) (1) (1)
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</TABLE>
(1) No additional securities are to be registered through this Amendment No.
1, and the registration fees were paid upon filing of the original
Registration Statement No. 333-33038. Therefore, no further registration
fee is required.
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The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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AUTOBYTEL.COM INC.
POST EFFECTIVE AMENDMENT NO. 1 TO
REGISTRATION STATEMENT ON FORM S-8
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 to Registration Statement No.
333-33038 (the "Registration Statement") of autobytel.com inc., a Delaware
corporation (the "Company") is filed by the Company solely to effect an
amendment to Section 5.03: Vesting Schedule of the Adoption Agreement for the
AUTOBYTEL.COM INC. RETIREMENT SAVINGS PLAN attached hereto as Exhibit 99.1.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following information filed with the Securities and Exchange
Commission (the "Commission") is incorporated herein by reference:
1. The Registrant's Form 8-A filed on March 5, 1999, pursuant to
Section 12(g) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
2. The Registrant's final prospectus filed pursuant to Rule 424(b)(3)
on March 26, 1999, pursuant to the Securities Act of 1933, as amended (the
"Securities Act").
3. The description of the common stock contained in the Registrant's
final prospectus filed pursuant to Rule 424(b)(3) on March 26, 1999,
pursuant to the Securities Act.
4. The Registrant's Current Report on Form 8-K dated April 29, 1999
relating to its first quarter financial results.
5. The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999.
6. The Registrant's Registration Statement on Form S-8 filed on May
6, 1999 pursuant to the Securities Act.
7. The Registrant's Current Report on Form 8-K dated July 29, 1999
relating to its second quarter financial results and its entering into a
definitive agreement to acquire W.G. Nichols Inc. and a related entity.
8. The Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1999.
9. The Registrant's Current Report on Form 8-K dated October 4, 1999
relating to the Registrant notifying W.G. Nichols Inc. that it had elected
not to proceed with the previously announced acquisition of W.G. Nichols
Inc. and a related entity.
10. The Registrant's Current Report on Form 8-K dated October 14,
1999 relating to the Registrant entering into a definitive agreement to
acquire A.I.N. Corporation.
11. The Registrant's Current Report on Form 8-K dated October 28,
1999 relating to its third quarter financial results.
12. The Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1999.
13. The Registrant's Registration Statement on Form S-8 filed on
November 1, 1999 pursuant to the Securities Act.
14. The Registrant's Current Report on Form 8-K dated January 27,
2000 relating to its financial results for the quarter and year ended
December 31, 1999.
15. The Registrant's Current Report on Form 8-K dated February 15,
2000 relating to its acquisition of the stock of A.I.N. Corporation and
the Agreement and Plan of Merger dated October 14, 1999, as amended.
In addition, all documents filed by the Registrant with the
Commission pursuant to Sections 13(a), 13(c), 14 or 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
have been
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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 with the
Commission. Any statement contained in a document incorporated by
reference herein shall be deemed to be modified or superseded for purposes
of this registration statement to the extent that a statement contained
herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this
registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable; the class of securities to be offered is registered
under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the issuance of the shares of common stock registered
under this registration statement has been passed upon for Autobytel.com by
Paul, Hastings, Janofsky & Walker LLP.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law permits a
corporation to include in its charter documents and in agreements between the
corporation and its directors and officers, provisions expanding the scope of
indemnification beyond that specifically provided by current law.
Article IX of Autobytel.com's Amended and Restated Certificate of
Incorporation provides for the indemnification of directors and officers to the
fullest extent permissible under Delaware law.
Article VII of Autobytel.com's Bylaws provides for the
indemnification of officers and directors to the fullest extent permissible by
the General Corporation Law of the State of Delaware.
Autobytel.com has entered into agreements to indemnify its directors
and officers. These agreements, among other things, indemnify Autobytel.com's
directors and officers for expenses including attorney's fees, judgments, fines
and settlement amounts incurred by any such person in any action or proceeding
arising out of such person's services as an officer or director of
Autobytel.com.
Autobytel.com's directors and officers shall not be entitled to
indemnity under these agreements if a reviewing party appointed by the board of
directors determines that such person is not entitled to be indemnified
thereunder under applicable law. In addition, Autobytel.com's directors and
officers may not be indemnified for expenses reasonably incurred regarding any
claim related to the fact that such person was a director or officer of
Autobytel.com:
1) if the expenses result from acts, omissions or transactions for
which such person is prohibited from receiving indemnification;
2) if the claims were initiated or brought voluntarily by one of
Autobytel.com's directors or officers and not by way of defense,
counterclaim or cross claim; or
3) if a claim instituted by one of Autobytel.com's directors or
officers or by Autobytel.com to enforce or interpret the
indemnity agreement was found to be frivolous or made in bad
faith by a court having jurisdiction over such matter.
To the extent indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling
Autobytel.com as discussed above, Autobytel.com has been informed 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.
Autobytel.com has a director and officers' liability insurance policy
insuring its officeholders with respect to matters permitted by the Delaware
General Corporation Law. The policy is limited to liability of $20 million plus
legal fees.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits filed as part of this registration statement are as
follows:
<TABLE>
<CAPTION>
SEQUENTIAL
EXHIBIT NO. DESCRIPTION PAGE NO.
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<S> <C> <C>
4.1 Amended and Restated Certificate of Incorporation of the
Registrant.(1)(2)
4.2 Amended and Restated By-laws of the Registrant.(3)
4.3 Form of Common Stock Certificate.(4)
5.1* Opinion of Paul, Hastings, Janofsky & Walker LLP.
23.1 Consent of Arthur Andersen LLP.
23.2* Consent of Paul, Hastings, Janofsky & Walker LLP (included in
Exhibit 5.1).
24.1 Power of Attorney (included on the Signature Page).
99.1 autobytel.com inc. Retirement Savings Plan.
</TABLE>
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* Previously filed.
(1) Incorporated by reference to Exhibit 3.1 of the Registrant's registration
statement on Form S-1, Registration No. 333-70621, originally filed with
the Securities and Exchange Commission on January 15, 1999, and declared
effective (as amended) on March 25, 1999 (the "Registration Statement").
(2) Incorporated by reference to Exhibit 3.1 of Form 10-Q for the Quarter
Ended June 30, 1999 filed with the Commission on August 12, 1999.
(3) Incorporated by reference to Exhibit 3.2 of the Registration Statement.
(4) Incorporated by reference to Exhibit 4.1 of the Registration Statement.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
A. (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 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement;
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(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 (A) (1) (i) and (A) (1) (ii) do not apply if
the registration statement is on Form S-3, 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 or furnished to the Commission
by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in this 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 herein, 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, each filing of the
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.
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 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 of 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 Amendment
No. 1 to Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Irvine, State of California, on June
14, 2000.
autobytel.com inc.
(Registrant)
By: /s/ ARIEL AMIR
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Ariel Amir
Senior Vice President,
General Counsel and Secretary
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Amendment No. 1 to the 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>
* Chairman of the Board and Director June 14, 2000
-------------------------------------
MICHAEL FUCHS
* Director June 14, 2000
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JEFFREY H. COATS
* Director June 14, 2000
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MARK N. KAPLAN
* Director June 14, 2000
-------------------------------------
KENNETH J. ORTON
</TABLE>
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<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
* Executive Vice President and Director June 14, 2000
--------------------------------------
ROBERT S. GRIMES
* Chief Executive Officer, President and June 14, 2000
------------------------------------- Director (Principal Executive Officer)
MARK W. LORIMER
* Senior Vice President and Chief Financial June 14, 2000
------------------------------------- Officer (Principal Financial Officer)
HOSHI PRINTER
* Executive Vice President and Chief June 14, 2000
------------------------------------- Operating Officer
ANN M. DELLIGATTA
* Vice President and Controller (Principal June 14, 2000
------------------------------------- Accounting Officer)
AMIT KOTHARI
* Director June 14, 2000
-------------------------------------
PETER TITZ
* Director June 14, 2000
-------------------------------------
RICHARD POST
By: /s/ ARIEL AMIR June 14, 2000
----------------------------------
ARIEL AMIR
Attorney-in-Fact
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIAL
EXHIBIT NO. DESCRIPTION PAGE NO.
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<S> <C> <C>
4.1 Amended and Restated Certificate of Incorporation of the
Registrant.(1)(2)
4.2 Amended and Restated By-laws of the Registrant.(3)
4.3 Form of Common Stock Certificate.(4)
5.1* Opinion of Paul, Hastings, Janofsky & Walker LLP.
23.1 Consent of Arthur Andersen LLP.
23.2* Consent of Paul, Hastings, Janofsky & Walker LLP (included in
Exhibit 5.1).
24.1 Power of Attorney (included on the Signature Page).
99.1 autobytel.com inc. Retirement Savings Plan.
</TABLE>
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* Previously filed.
(1) Incorporated by reference to Exhibit 3.1 of the Registrant's registration
statement on Form S-1, Registration No. 333-70621, originally filed with
the Securities and Exchange Commission on January 15, 1999, and declared
effective (as amended) on March 25, 1999 (the "Registration Statement").
(2) Incorporated by reference to Exhibit 3.1 of Form 10-Q for the Quarter
Ended June 30, 1999 filed with the Commission on August 12, 1999.
(3) Incorporated by reference to Exhibit 3.2 of the Registration Statement.
(4) Incorporated by reference to Exhibit 4.1 of the Registration Statement.
