<PAGE>
As filed with the Securities and Exchange Commission on November 23, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________________
EGGHEAD.COM, INC.
(Exact name of the Registrant as specified in its charter)
Delaware 77-0408319
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation)
______________________
1350 Willow Road
Menlo Park, California 94025
(650) 470-2400
(Address and Telephone Number of the Registrant's Principal Executive Offices)
____________________
S. Jerrold Kaplan
Chief Executive Officer and President
Egghead.com, Inc.
1350 Willow Road
Menlo Park, California 94025
(650) 470-2400
(Name, Address and Telephone Number of Agent For Service)
______________________
Copies to:
Horace L. Nash, Esq.
Thomas J. Hall, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
______________________
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.[_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act,
other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box.[X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.[_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering.[_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box.[_]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===============================================================================================================================
Proposed Maximum Proposed
Title of Shares Amount Aggregate Maximum Aggregate Amount of
To Be Registered To Be Registered (1) Price Per Share (2) Offering Price (2) Registration Fee
===============================================================================================================================
<S> <C> <C> <C> <C>
Common Stock,
$0.001 par value per share 5,000,000 $20.875 $104,375,000 $29,017
===============================================================================================================================
</TABLE>
(1) The shares of common stock set forth in the above table, and which may be
offered and sold pursuant to this Registration Statement, include, pursuant
to Rule 416 under the Securities Act, such additional number of shares of
the Registrant's common stock that may become issuable as a result of any
stock split, stock dividend or similar event.
(2) Estimated solely for the purpose of computing the registration fee pursuant
to Rule 457 under the Securities Act. The price per share and aggregate
offering price are based upon the average of the high and low prices for
Registrant's common stock on November 16, 1999, as reported on the Nasdaq
National Market pursuant to Rule 457(c).
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 or until this Registration Statement shall become effective
on such date as the Commission, acting pursuant to said Section 8(a), may
determine.
===============================================================================
<PAGE>
PROSPECTUS
[EGGHEAD.COM LOGO]
EGGHEAD.COM, INC.
5,000,000 Shares of Common Stock
______________________
Egghead.com, Inc. was formerly known as Onsale, Inc.
Egghead's common stock trades on the Nasdaq National Market.
Last reported sale price on November 22, 1999: $26.625
Trading symbol: EGGS (formerly ONSL)
______________________
The Offering
Under this prospectus, we may offer up to 5,000,000 shares of common stock. We
will provide specific terms for the sale of the common stock in supplements to
this prospectus. You should read this prospectus and the applicable prospectus
supplement carefully before you invest.
______________________
This investment involves a high degree of risk.
See "Risk Factors" in the supplement to this prospectus.
______________________
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is November ___, 1999.
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The information in this prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with
the Securities and Exchange Commission is effective. This prospectus is
not an offer to sell these securities and it is not soliciting an offer to
buy these securities in any jurisdiction where the offer or sale is not
permitted.
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<PAGE>
--------------------------------
TABLE OF CONTENTS
--------------------------------
<TABLE>
<S> <C>
About this Prospectus................. 2 Plan of Distribution................... 4
Prospectus Summary.................... 3 Legal Matters.......................... 5
Risk Factors.......................... 4 Experts................................ 5
Use of Proceeds....................... 4 Where You Can Find More Information.... 5
Dividend Policy....................... 4 Forward-Looking Statements............. 6
</TABLE>
______________________
ABOUT THIS PROSPECTUS
Unless the context otherwise requires, the terms "we," "our," "us," "the
company" and "Egghead" refer to Egghead.com, Inc., a Delaware corporation,
formerly known as Onsale, Inc. Egghead and the Egghead logo are our registered
trademarks. Other trademarks and trade names appearing in this prospectus are
the property of their holders.
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission utilizing a "shelf" registration process.
Under this shelf process, we may sell up to 5,000,000 shares of common stock in
one or more offerings. This prospectus provides you with a general description
of the common stock we may offer. Each time we sell common stock, we will
provide a prospectus supplement that will contain specific information about the
terms of that offering. The prospectus supplement also may add, update or change
information contained in this prospectus. You should read both this prospectus
and any prospectus supplement together with additional information described
under the heading "Where You Can Find More Information." We may only use this
prospectus to sell securities if it is accompanied by a prospectus supplement.
The registration statement that contains this prospectus, including the
exhibits to the registration statement, contains additional information about us
and the securities offered under this prospectus. That registration statement
can be read at the Commission's web site or at the Commission's offices
mentioned under the heading "Where You Can Find More Information."
<PAGE>
PROSPECTUS SUMMARY
This summary highlights information contained elsewhere in this
prospectus. This summary is not complete and does not contain all the
information you should consider before buying shares in this offering. You
should read the entire prospectus and prospectus supplement, particularly the
section titled "Risk Factors" in the prospectus supplement, carefully.
We are a leading Internet retailer of new and surplus computer products,
consumer electronics, sporting goods, and vacation packages. Through our auction
site - www.onsale.com - we offer bargains on excess and closeout goods and
services. We combine broad selection, low prices and excellent service to
provide an outstanding online shopping experience for businesses and consumers.
We incorporated in California in July 1994 and reincorporated in Delaware
in March 1997, in both instances under the name Onsale, Inc. We changed our name
to Egghead.com, Inc. on November 19, 1999. Our web sites are located at
http://www.egghead.com and www.onsale.com. Information contained in our web
sites does not constitute a part of this prospectus. Our principal executive
offices are located at 1350 Willow Road, Menlo Park, California 94025. Our
telephone number is (650) 470-2400.
The Offering
The shares that may be offered under this prospectus will represent
approximately 12% of our outstanding shares of common stock as of November 19,
1999. These shares may be offered on a continuous basis under Rule 415 under the
Securities Act of 1933.
<TABLE>
<S> <C>
Common stock offered by Egghead ........................ 5,000,000 shares
Common stock to be outstanding after the offering....... 42,133,114 shares*
Use of proceeds......................................... For general corporate purposes.
See "Use of Proceeds."
Nasdaq National Market Symbol........................... EGGS (formerly ONSL)
</TABLE>
______________
* Based on shares outstanding as of November 19, 1999, including the
approximately 17,432,335 shares to be issued in connection with our
merger with Egghead.com, Inc., a Washington corporation.
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<PAGE>
RISK FACTORS
An investment in the common stock involves a high degree of risk. You
should carefully consider the information contained under the heading "Risk
Factors" in the applicable supplement to this prospectus before investing in our
common stock. Our business and results of operation s could be seriously harmed
by any of the risks described in the applicable supplement to this prospectus.
The trading price of our common stock could decline due to any of these risks,
and you may lose all or part of your investment.
USE OF PROCEEDS
Unless otherwise indicated in the applicable supplement to this prospectus,
the net proceeds from the sale of common stock offered under this prospectus
will be added to our general funds and may be used:
. for working capital to fund operations, including increased operating
expenses as we continue to expand our marketing efforts, increase our
staffing, increase our software development efforts, and grow our
infrastructure; and
. for general corporate purposes.
Until we have used the net proceeds, we intend to invest the proceeds in
short-term marketable securities.
DIVIDEND POLICY
We have never paid any cash dividends on our common stock. We anticipate
that we will continue to retain any earnings for use in the operation of our
business and we do not currently intend to pay dividends.
PLAN OF DISTRIBUTION
General. We may sell the securities through underwriters or dealers,
through agents or directly to one or more purchasers. We may distribute these
securities from time to time in one or more transactions at a fixed price or
prices (which may be changed from time to time), at market prices prevailing at
the times of sale, at prices related to these prevailing market prices or at
negotiated prices.
The applicable prospectus supplement will describe the terms of the
offering of the securities, including:
. the name or names of any underwriters, if any;
. the purchase price of the securities and the proceeds we will receive
from the sale;
. any underwriting discounts and other items constituting underwriters'
compensation;
. any discounts or concessions allowed or reallowed or paid to dealers;
and
. any securities exchange or market on which the securities may be
listed.
Only underwriters named in the prospectus supplement, if any, are underwriters
of the securities offered with the prospectus supplement.
Use of Underwriters and Agents. If underwriters are used in the sale, they
will acquire the securities for their own account and may resell them from time
to time in one or more transactions at a fixed public offering price or at
varying prices determined at the time of sale. We may offer the securities to
the public through underwriting syndicates represented by managing underwriters
or by underwriters without a syndicate. Subject to certain
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conditions, the underwriters will be obligated to purchase all the securities of
the series offered by the prospectus supplement. Any public offering price and
any discounts or concessions allowed or reallowed or paid to dealers may change
from time to time.
We may sell securities directly or through agents we designate from time to
time. We will name any agent involved in the offering and sale of securities and
we will describe any commissions we will pay the agent in the prospectus
supplement. Unless the prospectus supplement states otherwise, our agent will
act on a best-efforts basis for the period of its appointment.
We may authorize agents or underwriters to solicit offers by certain types
of institutional investors to purchase securities from us at the public offering
price set forth in the prospectus supplement pursuant to delayed delivery
contracts providing for payment and delivery on a specified date in the future.
We will describe the conditions to these contracts and the commissions we must
pay for solicitation of these contracts in the prospectus supplement.
Deemed Underwriters. In connection with the sale of the securities offered
with this prospectus, underwriters, dealers or agents may receive compensation
from us or from purchasers of the securities for whom they may act as agents, in
the form of discounts, concessions or commissions. The underwriters, dealers or
agents which participate in the distribution of the securities may be deemed to
be underwriters under the Securities Act and any discounts or commissions
received by them and any profit on the resale of the securities received by them
may be deemed to be underwriting discounts and commissions under the Securities
Act. Anyone deemed to be an underwriter under the Securities Act may be subject
to statutory liabilities, including Sections 11, 12 and 17 of the Securities Act
and Rule 10b-5 under the Exchange Act.
Indemnification and Other Relationships. We may provide agents and
underwriters with indemnification against certain civil liabilities, including
liabilities under the Securities Act, or contribution with respect to payments
that the agents or underwriters may make with respect to such liabilities.
Agents and underwriters may engage in transactions with, or perform services
for, us in the ordinary course of business.
LEGAL MATTERS
Fenwick & West LLP, Palo Alto, California will provide us with an opinion
as to the legality of the common stock that may be offered with this prospectus.
EXPERTS
The financial statements incorporated in this document by reference to the
annual report on Form 10-K of Onsale, Inc. for the year ended December 31, 1998,
have been so incorporated in reliance on the report of PricewaterhouseCoopers
LLP, independent accountants, given on the authority of that firm as experts in
auditing and accounting. The future financial statements of Egghead.com, Inc.
and the reports thereon of PricewaterhouseCoopers LLP also will be incorporated
in this document by reference in reliance upon the authority of that firm as
experts in giving those reports to the extent that firm has audited those
financial statements and consented to the use of their reports thereon.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission. You may read and copy
any document we file at the Commission's Public Reference Room at 450 Fifth
Street, N.W., Washington, D.C. 20549. Please call the Commission at 1-800-SEC-
0330 for further information on the Public Reference Room. Our public filings,
including reports, proxy and information statements, are also available on the
Commission's web site at http://www.sec.gov.
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<PAGE>
The Commission allows us to "incorporate by reference" information from
other documents that we file with them, which means that we can disclose
important information by referring to those documents. The information
incorporated by reference is considered to be part of this prospectus, and
information that we file later with the Commission will automatically update and
supersede this information. We incorporate by reference into this prospectus
the documents listed below, and any future filings we make with the Commission
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
prior to the termination of this offering:
. Onsale's annual report on Form 10-K for the year ended December 31,
1998, filed with the Commission on March 31, 1999;
. the description of our common stock contained in Onsale's registration
statement on Form 8-A (File No. 000-21945) filed under Section 12(g)
of the Exchange Act with the Commission on March 11, 1997, including
any amendment or report filed for the purpose of updating such
description; and
. all other reports filed under Section 13(a) or 15(d) of the Exchange
Act since December 31, 1998, including (1) our quarterly reports on
Form 10-Q for the quarters ended March 31, June 30 and September 30,
1999, and (2) our current reports on Form 8-K filed with the
Commission on July 23, 1999, November 5, 1999 and November 22, 1999.
To the extent that any statement in this prospectus or a prospectus
supplement is inconsistent with any statement that is incorporated by reference
and that was made on or before the date of this prospectus or the applicable
prospectus supplement, the statement in this prospectus or the applicable
prospectus supplement shall control. The incorporated statement shall not be
deemed, except as modified or superceded, to constitute a part of this
prospectus, the applicable prospectus supplement or the registration statement.
Statements contained in this prospectus or the applicable prospectus supplement
as to the contents of any contract or other document are not necessarily
complete and, in each instance, we refer you to the copy of each contract or
document filed as an exhibit to the registration statement.
We will furnish without charge to each person to whom a copy of this
prospectus is delivered, upon written or oral request, a copy of the information
that has been incorporated into this prospectus by reference (except exhibits,
unless they are specifically incorporated into this prospectus by reference) .
You should direct any requests for copies to:
Egghead.com, Inc.
1350 Willow Road
Menlo Park, California 94025
Attention: Investor Relations, (650) 470-2780.
STATEMENTS REGARDING FORWARD-LOOKING INFORMATION
This document and the documents incorporated in this document by reference
contain forward-looking statements within the "safe harbor" provisions of the
Private Securities Litigation Reform Act of 1995 with respect to our financial
condition, results of operations and business. Words such as "anticipates,"
"expects," "intends," "plans," "believes," "seeks," "estimates" and similar
expressions identify forward-looking statements. These forward-looking
statements are not guarantees of future performance and are subject to certain
risks and uncertainties that could cause actual results to differ materially
from the results contemplated by the forward-looking statements. The section
entitled "Risk Factors" that appears in our annual report on Form 10-K for the
year ended December 31, 1998 and in the prospectus supplement accompanying this
prospectus describe some, but not all, of the factors that could cause these
differences.
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<PAGE>
===============================================================================
[Egghead.com Logo]
5,000,000 Shares of
Common Stock
____________________
PROSPECTUS
November __, 1999
____________________
You should rely only on the information contained in or specifically
incorporated by reference into this prospectus. We have not authorized anyone
to provide you with information different from that contained in this
prospectus. We are offering to sell, and seeking offers to buy, shares of
common stock only in the jurisdictions where offers and sales are permitted.
The information contained in this prospectus is accurate only as of the date of
this prospectus, regardless of the time of delivery of this prospectus or of any
sale of common stock.
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. Other Expenses of Issuance and Distribution.
The following table sets forth the costs and expenses in connection with
the sale of the common stock being registered. All amounts are estimated except
the SEC registration fee and the Nasdaq National Market listing fee.
<TABLE>
<CAPTION>
<S> <C>
SEC registration fee..................................... $ 29,017
Nasdaq National Market listing fee....................... 17,500
Accounting fees and expenses............................. 10,000
Legal fees and expenses.................................. 30,000
Miscellaneous............................................ 3,483
--------
Total................................................. $ 90,000
========
</TABLE>
ITEM 15. Indemnification of Officers and Directors.
Section 145 of the Delaware General Corporation Law authorizes a court to
award, or a corporation's board of directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities, including reimbursement for expenses
incurred, under the Securities Act of 1933.
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:
. for any breach of the director's duty of loyalty to the Registrant and
its stockholders;
. for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of the law;
. under Section 174 of the Delaware General Corporation Law; or
. for any transaction from which the director derived an improper
personal benefit.
As permitted by Section 145 of the Delaware General Corporation Law, the
Registrant's Amended and Restated Bylaws provide that:
. the Registrant is required to indemnify its directors and executive
officers to the fullest extent permitted by the Delaware General
Corporation Law, subject to certain exceptions;
. the Registrant 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;
. the rights conferred in the Bylaws are not exclusive; and
. the Registrant is authorized to enter into indemnity agreements with
its directors, officers, employees, and agents.
The Registrant 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
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indemnification set forth in the Registrant's Bylaws and to provide additional
procedural protections. The Registrant has also obtained directors' and
officers' liability insurance.
Reference is made to the following documents filed as exhibits to this
Registration Statement regarding relevant indemnification provisions described
above:
<TABLE>
<CAPTION>
Exhibit
Document Number
- -------- -------------
<S> <C>
The Registrant's Amended and Restated Certificate of Incorporation, as filed with 3.01
the Delaware Secretary of State on November 19, 1999
The Registrant's Amended and Restated Bylaws, as adopted on September 10, 1999. 3.02
Form of Indemnity Agreement entered into by the Registrant with certain of its directors and N/A
executive officers (incorporated by reference to Exhibit 10.04 to the Registrant's
registration statement on Form S-1 (File No. 333-18489) filed with the Commission on December
20, 1996).
</TABLE>
ITEM 16. Exhibits.
<TABLE>
<CAPTION>
Exhibit Exhibit
Number Title
- ------- -------
<S> <C>
1.01 Form of Underwriting Agreement(s).*
3.01 The Registrant's Amended and Restated Certificate of Incorporation, as filed with the Delaware
Secretary of State on November 19, 1999 (incorporated by reference to Exhibit 3.02 to the
Registrant's registration statement on Form S-4 (File No. 333-87377) filed with the Commission on
September 17, 1999).
3.02 The Registrant's Amended and Restated Bylaws, as adopted on September 10, 1999 (incorporated by
reference to Exhibit 4.05 to the Registrant's registration statement on Form S-8 (File No.
333-91045) filed with the Commission on November 16, 1999).
4.01 Form of Certificate of the Registrant's common stock, representing shares issued on or after
November 22, 1999.
5.01 Opinion of Fenwick & West LLP regarding the legality of the securities being registered.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of PricewaterhouseCoopers LLP, independent accountants.
24.01 Power of Attorney (see signature page after Item 17).
</TABLE>
___________________
* If the Registrant enters into any underwriting agreements, the Registrant will
file such agreement(s) by amendment or by a report on Form 8-K pursuant to
Item 601 of Regulation S-K.
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<PAGE>
ITEM 17. Undertakings.
The 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;
(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 thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement; and
(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 (a) and (b) do not apply if the information
required to be included in a post-effective amendment by (a) and (b) 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
Exchange Act that are incorporated by reference in the registration
statement.
(2) 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.
For purposes of determining any liability under the Securities Act:
(1) 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.
(2) 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 in the registration
statement, and the offering of the securities at that time shall be
deemed to be the initial bona fide offering of those securities.
(3) Each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the new
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(4) The information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1)
or (4) or 497(h) under the Securities Act shall be deemed to be part of
this registration statement as of the time it was declared effective.
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 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 a 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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<PAGE>
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 the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Menlo Park, State of California on this 23rd day of November,
1999.
EGGHEAD.COM, INC.
By: /s/ S. Jerrold Kaplan
--------------------------------------
S. Jerrold Kaplan
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSON BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints, jointly and severally, S. Jerrold Kaplan and
John E. Labbett, and each of them, his true and lawful attorneys-in-fact and
agents, each with the 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 sign any
registration statement for the same offering covered by this registration
statement that is to be effective upon filing pursuant to Rule 415 promulgated
under the Securities Act of 1933, and all post-effective amendments thereto, and
to file the same, with all exhibits thereto and all documents in connection
therewith, with the Securities and Exchange Commission, 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
and about the premises, 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 his or their 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 below by the following persons and in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
Principal Executive Officer:
President, Chief Executive Officer
/s/ S. Jerrold Kaplan and Director November 23, 1999
- ----------------------------------------
S. Jerrold Kaplan
Principal Financial and
Accounting Officer:
/s/ John E. Labbett Senior Vice President, Chief Financial
- ---------------------------------------- Officer, Controller and Secretary November 23, 1999
John E. Labbett
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
Additional Directors:
<S> <C> <C>
/s/ George Orban Chairman of the November 23, 1999
- ---------------------------------------- Board
George Orban
/s/ Alan S. Fisher Director November 23, 1999
- ----------------------------------------
Alan S. Fisher
/s/ C. Scott Gibson Director November 17, 1999
- ----------------------------------------
C. Scott Gibson
/s/ Peter L. Harris Director November 23, 1999
- ----------------------------------------
Peter L. Harris
/s/ Kenneth J. Orton Director November 23, 1999
- ----------------------------------------
Kenneth J. Orton
/s/ Robert T. Wall Director November 23, 1999
- ----------------------------------------
Robert T. Wall
/s/ Karen White Director November 23, 1999
- ----------------------------------------
Karen White
</TABLE>
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<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Exhibit
Number Title
- ------- -------
<S> <C>
4.01 Form of Certificate of the Registrant's common stock, representing shares issued on or after to
November 22, 1999.
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of PricewaterhouseCoopers LLP, independent accountants.
24.01 Power of Attorney (see signature page after Item 17).
</TABLE>
<PAGE>
EXHIBIT 4.01
COMMON STOCK COMMON STOCK
NUMBER [LOGO OF EGGHEAD.COM] SHARES
EGGS
INCORPORATED UNDER THE LAWS SEE REVERSE FOR
OF THE STATE OF DELAWARE ABBREVIATIONS AND
THIS CERTIFICATE IS STATEMENT OF RIGHTS
TRANSFERABLE IN BOSTON, MA GRANTED TO EACH CLASS
OR NEW YORK, NY OF SHARES
CUSIP 282329 10 1
THIS CERTIFIES THAT
is the record holder of
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK, $.001 PAR VALUE PER
SHARE OF
Egghead.com, Inc.
transferable on the books of the Corporation by the holder in person,
or by duly authorized Attorney, upon surrender of this Certificate properly
endorsed. This Certificate is not valid until countersigned by the Transfer
Agent and registered by the Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile
signatures of its duly authorized officers.
Dated:
EGGHEAD.COM, INC.
CORPORATE
SEAL
/s/ John E. Labbett DELAWARE /s/ S. Jerrold Kaplan
CHIEF FINANCIAL OFFICER PRESIDENT
& SECRETARY CHIEF EXECUTIVE OFFICER
COUNTERSIGNED AND REGISTERED:
BANKBOSTON, N.A.
TRANSFER AGENT AND REGISTRAR
BY /s/ L.E. Seeley
AUTHORIZED SIGNATURE
AMERICAN BANK NOTE COMPANY NOV 19, 1999
2564 ATLANTIC AVENUE
SUITE 12
LONG BEACH, CA 90617 064188fc
(562) 423-2333
(FAX) (562) 423-7450 270-19x Dated _____ RFV1
<PAGE>
Egghead.com, Inc.
A statement of the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights as established, from time to time by the Certificate of
Incorporation of the Corporation and by any certificate of determination. The
number of shares constituting each class and series, and the designations
thereof, may be obtained by the holder hereof upon request and without charge at
the principal office of the Corporation.
The following abbreviations, when used in the inscription on the face of
this Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<CAPTION>
<S> <C> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT - _______Custodian_____________
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right under Uniform Gifts to Minors
of survivorship and not as tenants Act________________
in common (State)
UNIF TRF MIN ACT - _______ Custodian (until age ___)
(Cust)
__________ under Uniform Transfers
(Minor)
to Minors Act ____________
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
For Value Received, _____________ hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER TAXPAYER IDENTIFYING NUMBER OF ASSIGNEE
- -----------------
- -----------------
__________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING ZIP CODE OF ASSIGNEE)
- --------------------------------------------------------------------------
- --------------------------------------------------------------------------
- --------------------------------------------------------------------shares
of the capital Stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
____________________________________________________________________Attorney
to transfer the said stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated_______________________________
X ________________________________________________
X ________________________________________________
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME AS WRITTEN UPON THE
FACE OF THE CERTIFICATE IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE
WHATEVER.
Signature(s) Guaranteed
By_____________________________________________
THE SIGNATURE(S) MUST BE GUARANTEED BY AN
ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCK-
BROKERS, SAVINGS AND LOAN ASSOCIATIONS AND
CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED
SIGNATURE GUARANTEE MEDALLION PROGRAM. PURSUANT
TO S.E.C. RULE 17AD-15).
AMERICAN BANK NOTE COMPANY NOV 19, 1999 fm
3604 ATLANTIC AVENUE
SUITE 12
LONG BEACH, CA 96807 064188bk
(562) 588-2883
(FAX) (562) 468-7430 Period REV 1
--
<PAGE>
EXHIBIT 5.01
------------
November 22, 1999
Egghead.com, Inc.
1350 Willow Road
Menlo Park, California 94025
Gentlemen/Ladies:
At your request, we have examined the Registration Statement on Form S-3
(the "Registration Statement") to be filed by Egghead.com, Inc. a Delaware
corporation formerly known as Onsale, Inc. (the "Company"), with the Securities
and Exchange Commission (the "Commission") on or about November 23, 1999, in
connection with the registration under the Securities Act of 1933, as amended,
of an aggregate of 5,000,000 shares of the Company's Common Stock (the "Stock"),
subject to issuance by you from time to time.
In rendering this opinion, we have examined the following.
(1) your registration statement on Form 8-A (File Number 34-000-21945)
filed with the Commission on March 11, 1997, together with the order
of effectiveness issued by the Commission therefor on April 17, 1997;
(2) your Annual Report on Form 10-K for the year ended December 31, 1998;
(3) your Quarterly Reports on Form 10-Q for the quarters ended March 31,
1999, June 30, 1999 and September 30, 1999;
(4) the Registration Statement, together with the exhibits filed as a part
thereof or incorporated therein by reference;
(5) the prospectus prepared in connection with the Registration Statement;
(6) 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, Inc., a
California corporation ("Onsale California"), that are in our
possession;
(7) your Amended and Restated Certificate of Incorporation and your
Amended and Restated Bylaws which are listed as exhibits to the
Registration Statement;
-1-
<PAGE>
(8) the stock records for both you and Onsale California that you have
provided to us (consisting of a certificate from your transfer agent
of even date herewith verifying the number of your issued and
outstanding shares of capital stock as of the date hereof and summary
reports from you confirming the number of your issued and outstanding
shares of capital stock and the number of options, warrants and any
other rights to acquire shares of your capital stock outstanding as of
the date hereof); and
(9) 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 and completeness of all documents submitted
to us as originals, the conformity to originals and completeness of all
documents submitted to us as copies, the legal capacity of all persons executing
the same, the lack of any undisclosed termination, modification, waiver or
amendment to any document reviewed by us and the due authorization, execution
and delivery of all documents where due authorization, execution and delivery
are prerequisites to the effectiveness thereof. We have also assumed that the
certificates representing the Stock have been, or will be when issued, properly
signed by authorized officers of the Company or their agents.
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,
records and 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 cause us to believe that the
- -------
opinion expressed herein is not accurate.
We are admitted to practice law in the State of California, and we express
no opinion herein with respect to the application or effect of the laws of any
jurisdiction other than the existing laws of the United States of America and
the State of California and (without reference to case law or secondary sources)
the existing Delaware General Corporation Law.
In connection with our opinion expressed below, we have assumed that, at or
prior to the time of the delivery of any shares of Stock, the Registration
Statement will have been declared effective under the Securities Act of 1933, as
amended, that the registration will apply to such shares of Stock and will not
have been modified or rescinded and that there will not have occurred any change
in law affecting the validity or enforceability of such shares of Stock.
The Company has informed us that the Company intends to issue the Stock
from time to time on a delayed or continuous basis. This opinion is limited to
the laws, including the rules and regulations, as in effect on the date hereof.
We are basing this opinion on our understanding
-2-
<PAGE>
that, prior to issuing any Stock, the Company will advise us in writing of the
terms thereof and other information material thereto, will afford us an
opportunity to review the operative documents pursuant to which such Stock is to
be issued (including the Registration Statement, the Prospectus and the
applicable Prospectus Supplement, as then in effect) and will file such
supplement or amendment to this opinion (if any) as we may reasonably consider
necessary or appropriate with respect to such Stock. However, we undertake no
responsibility to monitor the Company's future compliance with applicable laws,
rules or regulations of the Commission or other governmental body. We also
assume the Company will timely file any and all supplements to the Registration
Statement and Prospectus as are necessary to comply with applicable laws in
effect from time to time.
Based upon the foregoing, it is our opinion that the up to 5,000,000 shares
of Stock to be issued and sold by the Company, when issued, sold and delivered
in the manner and for the consideration stated in the Registration Statement and
the Prospectus, will be 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 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 we assume no obligation to
update this opinion should circumstances change after the date hereof. This
opinion is intended solely for the Company's 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,
FENWICK & WEST LLP
By: /s/ HORACE L. NASH
_________________________________
Horace L. Nash, a Partner
-3-
<PAGE>
Exhibit 23.02
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CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-3 of our report dated February 12, 1998 relating to the
financial Statements and financial Statement Schedule, which appears in Onsale,
Inc.'s Annual Report on Form 10-K for the year ended December 31, 1998.
/s/ PricewaterhouseCoopers LLP
San Jose, California
November 22, 1999
