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As filed with the Securities and Exchange Commission on June 15, 2000.
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
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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. 2000 STOCK OPTION 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>
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Proposed
Proposed Maximum
Amount To Be Maximum Offering Aggregate Amount of
Title of Securities To Be Registered Registered (1) Price Per Share(2) Offering Price(2) Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, par value $0.001 3,000,000 $6.88 $20,640,000.00 $5,448.96
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</TABLE>
(1) The number of shares of common stock, par value $0.001 per share (the
"Common Stock"), stated above consists of the aggregate number of shares
which may be sold upon the exercise of options which may hereafter be
granted under the autobytel.com inc. 2000 Stock Option Plan (the "Plan").
The maximum number of shares which may be sold upon the exercise of such
options granted under the Plan are subject to adjustment in accordance with
certain anti-dilution and other provisions of the Plan. Accordingly,
pursuant to Rule 416 under the Securities Act of 1933, this Registration
Statement includes, in addition to the number of shares stated above, an
indeterminate number of shares which may be subject to grant or otherwise
issuable after the operation of any such anti-dilution and other
provisions.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h) under the Securities Act of 1933. The fee is
calculated on the basis of the average of the high and low sale prices per
share of Common Stock as quoted on the Nasdaq National Market on June 13,
2000 (within 5 business days prior to filing this Registration Statement).
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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 Annual Report on Form 10-K for the fiscal year
ended December 31, 1999.
2. 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 of 1933, as amended (the "Securities Act").
3. The Registrant's Amended Current Report (8-K/A) dated February 15,
2000 that amends its Current Report on Form 8-K filed with the Securities and
Exchange Commission on February 24, 2000 by incorporating Item 7(a) "Financial
Statements of Businesses Acquired" and Item 7(b) "Pro Forma Financial
Information".
4. The Registrant's Current Report on Form 8-K dated April 6, 2000
relating to preliminary financial results for the three months ended March 31,
2000.
5. The Registrant's Current Report on Form 8-K dated April 27, 2000
relating to its financial results for the quarter ended March 31, 2000.
6. The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2000.
7. The Registrant's Definitive Proxy Statement dated April 28, 2000
relating to an Annual Meeting of Stockholders to be held on June 15, 2000.
8. 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.
9. 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").
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 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.
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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 inc.
("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:
SEQUENTIAL
EXHIBIT NO. DESCRIPTION PAGE NO.
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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. 2000 Stock Option Plan.
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(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 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, as amended,
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 Irvine, State of California, on June 14, 2000.
autobytel.com inc.
(Registrant)
By: /s/ Mark W. Lorimer
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Mark W. Lorimer
Chief Executive Officer,
President and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Mark W. Lorimer, Hoshi Printer and Ariel
Amir, with full power to act without the other, and each of them, as such
person's true and lawful attorney- or attorneys-in-fact and agent or agents,
with full power of substitution and resubstitution, for such person and in such
person's name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to the registration statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission and any other
regulatory authority, granting unto said attorneys-in-fact and agents, 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 connection therewith, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their
or such person's substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
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<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Michael Fuchs Chairman of the Board and Director June 14, 2000
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MICHAEL FUCHS
/s/ Jeffrey H. Coats Director June 14, 2000
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JEFFREY H. COATS
/s/ Mark N. Kaplan Director June 14, 2000
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Mark N. Kaplan
/s/ Kenneth J. Orton Director June 14, 2000
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KENNETH J. ORTON
/s/ Robert S. Grimes Director June 14, 2000
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ROBERT S. GRIMES
/s/ Mark W. Lorimer Chief Executive Officer, President and June 14, 2000
------------------------------------ Director (Principal Executive Officer)
MARK W. LORIMER
/s/ Hoshi Printer Senior Vice President and Chief Financial June 14, 2000
------------------------------------ Officer (Principal Senior Financial Officer)
HOSHI PRINTER
/s/ Amit Kothari Vice President and Controller (Principal June 14, 2000
------------------------------------ Accounting Officer)
AMIT KOTHARI
/s/ Peter Titz Director June 14, 2000
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PETER TITZ
/s/ Richard A. Post Director June 14, 2000
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RICHARD POST
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EXHIBIT INDEX
SEQUENTIAL
EXHIBIT NO. DESCRIPTION PAGE NO.
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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. 2000 Stock Option Plan
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(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.
