<PAGE>
As filed with the Securities and Exchange Commission on April 18, 1997
Registration No. 333- ______
______________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________________________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ONSALE, INC.
(Exact name of issuer as specified in its charter)
Delaware 77-0408319
(State of Incorporation) (I.R.S. Employer Identification No.)
1861 Landings Drive, Mountain View, California 94043
(Address of Principal Executive Office Including Zip Code)
ONSALE, INC.
1995 EQUITY INCENTIVE PLAN
1996 DIRECTORS OPTION PLAN
1996 EMPLOYEE STOCK PURCHASE PLAN
---------------------------------
(Full title of the plans)
John F. Sauerland
Chief Financial Officer
ONSALE, Inc., 1861 Landings Drive
Mountain View, California 94043
(415) 428-0600
(Name, address and telephone number of agent for service)
Copy to:
ADAM W. WEGNER
FENWICK & WEST LLP
Two Palo Alto Square
Palo Alto, CA 94306
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CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------
Proposed
Title of Amount Maximum Proposed Maximum
Securities to to be Offering Aggregate Offering Amount of
Be Registered Registered Price per Share Price Registration Fee
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.001 1,847,416 (1) $6.19(2) $15,024,933.00 $4,553.01
Common Stock, par value $0.001 1,863,300 (3) $1.92(4)
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Shares available for grant as of April 17, 1997 under the 1995 Equity
Incentive Plan, 1996 Directors Stock Option Plan and available for issuance
under the 1996 Employee Stock Purchase Plan.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rules 457(h) and 457(c) under the Securities Act of 1933
and based upon an average of the high and low prices reported on the Nasdaq
National Market on April 17, 1997.
(3) Shares subject to options outstanding as of April 17, 1997 under the 1995
Equity Incentive Plan.
(4) Weighted average per share exercise price of options outstanding as of
April 17, 1997 under the 1995 Equity Incentive Plan.
<PAGE>
Item 1. Plan Information.*
- ------ ----------------
Item 2. Registrant Information and Employee Plan Annual Information.*
- ------ -----------------------------------------------------------
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance with
Rule 428 under the Securities Act of 1933 (the "Securities Act") and the
Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
-----------------------------------------------
There are hereby incorporated by reference in this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission:
1. The Company's prospectus filed with the Commission on April 18,
1997 under Rule 424(b) of the Securities Act of 1933, as amended, which contains
audited financial statements for the fiscal year ended December 31, 1996.
2. The description of the Company's Common Stock contained in the
Company's registration statement 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
All documents filed by the Company pursuant to Sections 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 in 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. Interests of Named Experts and Counsel.
--------------------------------------
None.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
As permitted by the Delaware General Corporation Law, the Company's
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. At this time, Delaware General Corporation Law does not permit
indemnification for liability (i) for any breach of the director's duty of
loyalty to the corporation and 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 or (iv) for
any transaction from which the director derived an improper personal benefit.
As permitted by Section 145 of the Delaware General Corporation Law,
the Bylaws of the Company provide that (i) the Company is required to indemnify
its directors and executive officers to the fullest extent permitted by the
Delaware General Corporation Law, (ii) the Company is required, with certain
exceptions, to advance expenses, as incurred, to its directors and executive
officers in connection with a legal proceeding to the fullest extent permitted
by the Delaware General Corporation Law, (iii) the rights conferred in the
Bylaws are not
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<PAGE>
exclusive and (iv) the Company is authorized to enter into indemnity agreements
with its directors, officers, employees and agents.
The Company has entered into indemnity agreements with each of its
directors and executive officers to give such directors and executive officers
additional contractual assurances regarding the scope of the indemnification set
forth in the Company's Bylaws and to provide additional procedural protections.
Item 7. Exemption From Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
--------
Exhibit No. Description
- ----------- -----------
4.01* Certificate of Incorporation filed on (previously filed as
Exhibit 3.01 to Registration Statement on Form S-1, File No.
333-18459)
4.02* Bylaws as of December 12, 1996 (previously filed as Exhibit 3.02
to Registration Statement on Form S-1, File No. 333-18459)
4.03* Investors Rights Agreement dated as of September 12, 1996
(previously filed as Exhibit 4.01 to Registration Statement on
Form S-1, File No. 333-18459)
5.01 Opinion of Fenwick & West LLP
23.01 Consent of Counsel (included in Exhibit 5.1)
23.02 Consent of Price Waterhouse LLP
24.01 Power of Attorney (See page II-4)
___________________________
* These exhibits were previously filed with the Commission as indicated and
are incorporated herein by reference.
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 of 1933;
(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 thereto) 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 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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(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) 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 the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference 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.
(4) 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 Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities 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.
(5) To deliver or cause to be delivered with the prospectus, to each
person to whom the prospectus is sent or given, the latest annual report to
security holders that is incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3
under the Securities Exchange Act of 1934; and, where interim financial
information required to be presented by Article 3 of Regulation S-X is not set
forth in the prospectus, to deliver, or cause to be delivered to each person to
whom the prospectus is sent or given, the latest quarterly report that is
specifically incorporated by reference in the prospectus to provide such interim
financial information.
(6) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 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 a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, the
registrant, ONSALE, Inc., 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 Mountain View, State of California, on
April 18, 1997.
ONSALE, INC.
By: /s/JOHN F. SAUERLAND
_______________________
John F. Sauerland
Chief Financial Officer
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POWER OF ATTORNEY
-----------------
Each person whose signature appears below constitutes and appoints John
Sauerland and S. Jerrold Kaplan, his true and lawful attorneys-in-fact and
agents 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 and to file the same,
with exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to 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 either of
them, or their 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.
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<CAPTION>
Signature Title Date
- -------------------------------- ------------------------------ -----------------------------------------
<S> <C> <C>
PRINCIPAL EXECUTIVE OFFICER
AND DIRECTOR
/s/JERROLD KAPLAN
_______________________________ President and Chief April 17, 1997
S. Jerrold Kaplan Executive Officer and Director
PRINCIPAL FINANCIAL AND PRINCIPAL
ACCOUNTING OFFICER
/s/JOHN F. SAUERLAND
_______________________________ Chief Financial Officer April 17, 1997
John F. Sauerland
ADDITIONAL DIRECTORS
/s/ALAN S. FISHER
_______________________________ Vice President of Development and April 14, 1997
Alan S. Fisher Operations, Chief Technical Officer
and Director
/s/PETER T. HARRIS
_______________________________ Director April 17, 1997
Peter T. Harris
/s/PETER H. JACKSON
_______________________________ Director April 14, 1997
Peter H. Jackson
/s/KENNETH J. ORTON
_______________________________ Director April 14, 1997
Kenneth J. Orton
</TABLE>
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INDEX TO EXHIBITS
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Exhibit Number Exhibit
- -------------- -------
4.01* Certificate of Incorporation filed on December 12, 1996
(previously filed as Exhibit 3.01 to Registration
Statement on Form S-1, File No. 333-18459)
4.02* Bylaws as of December 12, 1996 (previously filed as
Exhibit 3.02 to Registration Statement on Form S-1, File
No. 333-18459)
4.03* Investors Rights Agreement dated as of September 12,
1996 (previously filed as Exhibit 4.01 to Registration
Statement on Form S-1, File No. 333-18459)
5.01 Opinion of Fenwick & West
23.01 Consent of Counsel (included in Exhibit 5.1)
23.02 Consent of Price Waterhouse LLP
24.1 Power of Attorney (See page II-4)
_____________________________
* These exhibits were previously filed with the Commission as indicated and
are incorporated herein by reference.
<PAGE>
EXHIBIT 5.01
------------
April 17, 1996
ONSALE, Inc.
1861 Landings Drive
Mountain View, California 94043
Gentlemen/Ladies:
At your request, we have examined the Registration Statement on Form S-8 (the
"Registration Statement") to be filed by you with the Securities and Exchange
Commission (the "Commission") on or about April 17, 1997 in connection with the
registration under the Securities Act of 1933, as amended, of an aggregate of
3,710,716 shares of your Common Stock (the "Stock") of ONSALE, Inc., a Delaware
corporation (the "Company"), subject to issuance by you upon the exercise of (a)
stock options granted by you or to be granted under your 1995 Equity Incentive
Plan, as amended (the "Equity Incentive Plan"), (b) stock options granted or to
be granted by your under your 1996 Directors Stock Option Plan (the "Directors
Plan"), or (c) purchase rights granted or to be granted under your 1996 Employee
Stock Purchase Plan, as amended (the "Purchase Plan"). The plans referred to in
clauses (a) through (c) above are collectively referred to in this letter as the
"Plans"). In rendering this opinion, we have examined the following:
(1) your registration statement on Form S-1 (File Number 333-18459) filed
with and declared effective by the Commission on April 17, 1997,
together with the Exhibits filed as a part thereof, including without
limitation, each of the Plans and related stock option grant and
exercise agreements;
(2) the Registration Statement, together with the Exhibits filed as a part
thereof;
(3) the Prospectuses prepared in connection with the Registration
Statement;
(4) the minutes of meetings and actions by written consent of the
stockholders and Board of Directors that are contained in your minute
books and the minute books of your predecessor, ONSALE, a California
corporation ("ONSALE California"), that are in our possession; and
(4) the stock records for both you and ONSALE California that you have
provided to us (consisting of a list of stockholders issued by your
transfer agent, The First National Bank of Boston and a list of option
and warrant holders respecting your capital stock that was prepared by
you and dated April 17, 1997).
(5) a Management Certificate addressed to us and dated of even date
herewith executed by the Company containing certain factual and other
representations.
In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to, the genuineness of all signatures on
original documents, the authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies, the legal capacity of all natural persons executing the same, the lack
of any
<PAGE>
ONSALE, Inc.
April 18, 1996
Page 2
undisclosed terminations, modifications, waivers or amendments to any documents
reviewed by us and the due execution and delivery of all documents where due
execution and delivery are prerequisites to the effectiveness thereof.
As to matters of fact relevant to this opinion, we have relied solely upon
our examination of the documents referred to above and have assumed the current
accuracy and completeness of the information obtained from public officials and
records included in the documents referred to above. We have made no
independent investigation or other attempt to verify the accuracy of any of such
information or to determine the existence or non-existence of any other factual
matters; however, we are not aware of any facts that would lead us to believe
-------
that the opinion expressed herein is not accurate.
Based upon the foregoing, it is our opinion that the 3,710,716 shares of
Stock that may be issued and sold by you upon the exercise of (a) stock options
granted or to be granted under the Equity Incentive Plan (b) stock options
granted or to be granted under the Directors Plan and (c) purchase rights
granted or to be granted under the Purchase Plan, when issued and sold in
accordance with the applicable plan and stock option or purchase agreements to
be entered into thereunder, and in the manner referred to in the relevant
Prospectus associated with the Registration Statement, will be legally issued,
fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us, if any, in the
Registration Statement, the Prospectus constituting a part thereof and any
amendments thereto.
This opinion speaks only as of its date and is intended solely for the your
use as an exhibit to the Registration Statement for the purpose of the above
sale of the Stock and is not to be relied upon for any other purpose.
Very truly yours,
/s/ FENWICK & WEST LLP
By: /s/ LHS
----------------------------
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EXHIBIT 23.2
------------
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 13, 1997 which appears on page
F-2 of the Registration Statement on Form S-1 (No. 333-18459) of ONSALE, Inc.
PRICE WATERHOUSE LLP
San Jose, California
April 17, 1997
