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As filed with the Securities and Exchange Commission on August 8, 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
EGGHEAD.COM, INC.
(Exact name of the Registrant as specified in its charter)
Delaware 77-0408319
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1350 Willow Road
Menlo Park, California 94025
(Address of principal executive offices)
Egghead.com 2000 Equity Incentive Plan
Onsale, Inc. 1996 Employee Stock Purchase Plan
Onsale, Inc. 1995 Equity Incentive Plan
(Full title of the plan)
John Labbett
Executive Vice President and Chief Financial Officer
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
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Proposed
Amount Maximum Maximum
Title of Shares To Be Aggregate Aggregate Amount of
To Be Registered Registered Price Per Share Offering Price Registration Fee
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<S> <C> <C> <C> <C>
Common Stock,
$0.001 par value per share 3,045,587 (1) $2.40625 (2) $7,328,444 (2) $1,935
-----------------------------------------------------------------------------------------------------------
</TABLE>
(1) Represents 1,000,000 shares reserved for issuance upon the exercise of
options granted or that may be granted under the 2000 Equity Incentive
Plan, an additional 1,487,700 shares reserved for issuance upon the
exercise of options granted or that may be granted under the 1995 Equity
Incentive Plan, and an additional 557,887 shares reserved for issuance
under the 1996 Employee Stock Purchase Plan.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h)(1) and Rule 457(c) under the Securities Act,
based on the average of the high and low prices of the Registrant's common
stock as reported by the Nasdaq National Market on August 2, 2000.
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PART II: INFORMATION REQUIRED IN THE REGISTRTION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
(the "Commission") are incorporated into this registration statement by
reference:
(a) our most recent annual report on Form 10-K;
(b) all other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")
since the end of the fiscal year covered by the document referred to
in (a) above; and
(c) the description of our common stock contained in our registration
statement on Form 8-A filed under Section 12(g) of the Exchange Act,
including any amendment or report filed for the purpose of updating
such description.
All documents subsequently filed by us pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities registered hereby have been sold
or which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of the
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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, our certificate of
incorporation, as amended, 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 us or our
stockholders;
. for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
. Section 174 of the Delaware General Corporation Law (regarding
unlawful dividends and stock purchases); or
. for any transaction from which the director derived an improper
personal benefit.
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As permitted by the Delaware General Corporation Law, our bylaws, as
amended, provide that:
. we are required to indemnify our directors and executive officers to
the fullest extent permitted by the Delaware General Corporation Law,
subject to certain exceptions;
. we are required, with certain exceptions, to advance expenses, as
incurred, to our directors and 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
. we are authorized to enter into indemnity agreements with our
directors, officers, employees, and agents.
We entered into indemnity agreements with each of our current directors and
executive officers to give such directors and executive officers additional
contractual assurances regarding the scope of the indemnification set forth in
our certificate of incorporation and to provide additional procedural
protections. The indemnification provisions in our certificate of incorporation,
bylaws and the indemnity agreements may be sufficiently broad to permit
indemnification of our directors and executive officers for liabilities arising
under the Securities Act.
We have also obtained directors' and officers' liability insurance that
will include coverage for securities matters. At present, there is no pending
litigation or proceeding involving any of our directors, officers or employees
regarding which indemnification is sought, nor are we aware of any threatened
litigation that may result in claims for indemnification.
See also the undertakings set out in response to Item 9.
Reference is made to the following documents regarding relevant
indemnification provisions described above and elsewhere herein:
Document
--------
Amended and Restated Certificate of Incorporation, filed with the Delaware
Secretary of State on November 19, 1999 (see Exhibit 4.01).
Amended and Restated Bylaws, as adopted on September 10, 1999 (see Exhibit
4.02).
Form of Indemnity Agreement entered into by the Registrant with certain of its
directors and executive officers (incorporated by reference to exhibit 10.01 to
the Registrant's annual report on Form 10-K, filed with the Commission on March
30, 2000).
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
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<CAPTION>
Incorporated by Reference
Exhibit ------------------------- Filed
Number Exhibit Description Form File No. Exhibit Filing Date Herewith
------- ------------------- ---- -------- ------- ----------- --------
<S> <C> <C> <C> <C> <C> <C>
4.01 Amended and Restated Certificate of S-4 333-873777 3.02 09/17/99
Incorporation, as filed with the Delaware
Secretary of State on November 19, 1999.
4.02 Amended and Restated Bylaws, as adopted on S-8 333-91045 4.05 11/16/99
September 10, 1999.
4.03 Form of Certificate of the Registrant's common S-3 333-91553 4.02 11/23/99
stock.
4.04 Egghead.com 2000 Equity Incentive Plan, as X
adopted on March 13, 2000, and form of related
agreements.
4.05 Onsale, Inc. 1995 Equity Incentive Plan, as S-4 333-87377 10.12 09/17/99
amended and restated on September 10, 1999, and
form of related agreements.
4.06 Onsale, Inc. 1996 Employee Stock Purchase Plan, S-8 333- 58991 4.01 07/13/98
as amended and restated on March 16, 1998.
4.07 Form of agreements related to the Onsale, Inc. S-4 333-87377 10.13 09/17/99
1996 Employee Stock Purchase Plan.
5.01 Opinion of Fenwick & West LLP regarding the X
legality of the securities being registered.
23.01 Consent of Fenwick & West LLP (included in X
Exhibit 5.01).
23.02 Consent of PricewaterhouseCoopers LLP, X
Independent Public Accountants.
23.03 Consent of Arthur Andersen LLP, Independent X
Public Accountants.
24.01 Power of Attorney (see signature page following X
Item 9).
</TABLE>
ITEM 9. UNDERTAKINGS.
We hereby undertake:
(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;
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(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 us pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the 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
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, each filing of our 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 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.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to our directors, officers and controlling persons pursuant to
the foregoing provisions, or otherwise, we have 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 us of
expenses incurred or paid by one or more of our directors, officers or
controlling persons 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, we will, unless in the opinion of our 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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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Menlo Park, state of California, on this 8th day of
August, 2000.
EGGHEAD.COM, INC.
By: /s/ John E. Labbett
-------------------
John E. Labbett
Executive Vice President and
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each individual whose signature
appears below and on the next page constitutes and appoints S. Jerrold Kaplan
and John E. Labbett, and each of them, 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 on Form S-8, 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 by the following persons in the
capacities and on the dates indicated.
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Signature Title Date
--------- ----- ----
<S> <C> <C>
Principal Executive Officer:
/s/ Jeffrey F. Sheahan Chief Executive Officer, August 8, 2000
--------------------------------- President and Director
Jeffrey F. Sheahan
Principal Financial Officer and
Principal Accounting Officer:
/s/ John E. Labbett Executive Vice President August 8, 2000
--------------------------------- and Chief Financial Officer
John E. Labbett
</TABLE>
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<TABLE>
<S> <C> <C>
Additional Directors:
/s/ S. Jerrold Kaplan Co-Chairman of the Board of Directors August 8, 2000
-----------------------
S. Jerrold Kaplan
/s/ George Orban Co-Chairman of the Board of Directors August 8, 2000
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George Orban
/s/ James J. Barnett Director August 8, 2000
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James J. Barnett
/s/ C. Scott Gibson Director August 8, 2000
-----------------------
C. Scott Gibson
/s/ Peter L. Harris Director August 8, 2000
-----------------------
Peter L. Harris
/s/ Kenneth J. Orton Director August 8, 2000
-----------------------
Kenneth J. Orton
/s/ Robert T. Wall Director August 8, 2000
-----------------------
Robert T. Wall
/s/ Karen White Director August 8, 2000
-----------------------
Karen White
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Incorporated by Reference
Exhibit ------------------------- Filed
Number Exhibit Description Form File No. Exhibit Filing Date Herewith
------- ------------------- ---- -------- ------- ----------- --------
<S> <C> <C> <C> <C> <C> <C>
4.01 Amended and Restated Certificate of S-4 333-873777 3.02 09/17/99
Incorporation, as filed with the Delaware
Secretary of State on November 19, 1999.
4.02 Amended and Restated Bylaws, as adopted on S-8 333-91045 4.05 11/16/99
September 10, 1999.
4.03 Form of Certificate of the Registrant's common S-3 333-91553 4.02 11/23/99
stock.
4.04 Egghead.com 2000 Equity Incentive Plan, as X
adopted on March 13, 2000, and form of related
agreements.
4.05 Onsale, Inc. 1995 Equity Incentive Plan, as S-4 333-87377 10.12 09/17/99
amended and restated on September 10, 1999, and
form of related agreements.
4.06 Onsale, Inc. 1996 Employee Stock Purchase Plan, S-8 333-58991 4.01 07/13/98
as amended and restated on March 16, 1998.
4.07 Form of agreements related to the Onsale, Inc. S-4 333-87377 10.13 09/17/99
1996 Employee Stock Purchase Plan.
5.01 Opinion of Fenwick & West LLP regarding the X
legality of the securities being registered.
23.01 Consent of Fenwick & West LLP (included in X
Exhibit 5.01).
23.02 Consent of PricewaterhouseCoopers LLP, X
Independent Public Accountants.
23.03 Consent of Arthur Andersen LLP, Independent X
Public Accountants.
24.01 Power of Attorney (see signature page following X
Item 9).
</TABLE>
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