<PAGE>
As filed with the Securities and Exchange Commission on February 3, 2000
Registration No. 333-91553
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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
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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.[-]
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.
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<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 February 2, 2000: $12.63
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 February ___, 2000.
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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>
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TABLE OF CONTENTS
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<TABLE>
<S> <C>
About this Prospectus................. 2 Plan of Distribution................... 4
Prospectus Summary.................... 3 Legal Matters.......................... 6
Risk Factors.......................... 4 Experts................................ 6
Use of Proceeds....................... 4 Where You Can Find More Information.... 6
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 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....... 42,214,458 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 January 31, 2000.
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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 operations 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
We may sell common stock through underwriters, dealers or agents, directly
to one or more purchasers, or by means of both of these methods. We may
distribute common stock 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 time of sale, at prices related to these prevailing market
prices, or at negotiated prices.
Regardless of the method we use to sell our common stock, we will provide a
prospectus or prospectus supplement pursuant to Rule 424(b) under the Securities
Act of 1933 (the "Securities Act") that will disclose:
. the identity of any underwriters, dealers, agents or investors who
purchase common stock, as required;
. the number of shares sold, the public offering price and consideration
paid, and the proceeds we will receive from the sale;
. the amount of any compensation, discounts or commissions to be
received by underwriters, dealers or agents;
. the terms of any idemnification provisions, including indemnification
from liabilities under the federal securities laws; and
. any other material terms of the distribution of the common stock.
Use of Underwriters and Agents. Only underwriters named in a prospectus or
prospectus supplement, if any, are underwriters of the common stock offered with
that prospectus or prospectus supplement. If underwriters are used in the sale,
they will acquire the common stock for their own account and may resell the
common stock 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 common stock to the public through underwriting syndicates represented by
managing underwriters or by underwriters without a syndicate. Subject to certain
conditions, the underwriters will be obligated to purchase all the common stock
offered by the prospectus supplement in which they are named, if any. 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 the common stock through agents we designate from time to time.
We will name any agent involved in the offering and sale of common stock and in
the prospectus supplement we will describe any commissions we will pay the
agent. Unless the prospectus supplement states otherwise, our agent will act on
a best-efforts basis for the period of appointment.
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<PAGE>
We may authorize agents or underwriters to solicit offers by certain types
of institutional investors to purchase the common stock 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.
In connection with the sale of the common stock offered with this
prospectus, underwriters, dealers or agents may receive compensation from us or
from purchasers of the common stock for whom they may act as agents, in the form
of discounts, concessions or commissions. Agents and underwriters may engage in
transactions with us, or perform services for us, in the ordinary course of
business.
Sales Directly to Purchasers. We may enter into agreements directly with
one or more purchasers. Such agreements may provide for the sale of our common
stock at a fixed price, based on the market price of the common stock or
otherwise. Alternatively, such agreements may provide for the sale of common
stock over a period of time by means of draw downs at our election which the
purchaser would be obligated to accept under specified conditions. Under this
form of agreement, we may sell common stock at a per share purchase price which
is discounted from the market price. Such agreements may also provide for sales
of common stock based on combinations of or variations from these methods.
Deemed Underwriters. The underwriters, dealers, agents or purchasers that
participate in the distribution of the common stock may be deemed to be
underwriters under the Securities Act. Broker-dealers or other persons acting on
behalf of parties that participate in the distribution of the common stock may
also be deemed to be underwriters. Any discounts or commissions received by them
and any profit on the resale of the common stock 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 Securities Exchange Act of 1934 (the "Exchange Act").
Underwriters or purchasers that would be deemed underwriters under the
Securities Act, and their pledgees, donees, transferees and other subsequent
owners, may offer the common stock at various times in the over-the-counter
market or in privately negotiated transactions, at a fixed price or prices
(which may be changed from time to time), prevailing market prices at the time
of sale, at prices related to those prevailing market prices, or at negotiated
prices. These sales may be made according to one or more of the following
methods:
. ordinary brokerage transactions and transactions in which the broker
solicits purchasers;
. block trades in which the broker or dealer so engaged will attempt to
sell the common stock as agent but may position and resell a portion
of the block as principal in order to facilitate the transaction;
. purchases by a broker or dealer as principal and resale by the broker
or dealer for its account as allowed under this prospectus, including
resale to another broker or dealer;
. exchange distributions under the rules of the exchange;
. negotiated transactions between sellers and purchasers without a
broker-dealer; and
. by writing options.
These underwriters or purchasers may also sell the common stock under Rule 144,
instead of under this prospectus, if Rule 144 is available for those sales.
Underwriters and purchasers that are deemed underwriters under the
Securities Act may engage in transactions that stabilize, maintain or otherwise
affect the price of the common stock, including the entry of stabilizing bids or
syndicate covering transactions or the imposition of penalty bids. Such
purchasers will be subject to the applicable provisions of the Securities Act
and Exchange Act and the rules and regulations thereunder, including Rule 10b-5
and Regulation M. Regulation M may restrict the ability of any person engaged in
the distribution of the common stock to engage in market-making activities with
respect to the common stock. In addition, the anti-manipulation rules under the
Exchange Act may apply to sales of the common stock in the market. All of the
foregoing may affect the marketability of the common stock and the ability of
any person to engage in market-making activities with respect to the common
stock.
Expenses Associated with Registration. We are paying substantially all of
the expenses of registering the common stock under the Securities Act and of
compliance with blue sky laws, including registration and filing fees, printing
and duplication expenses, administrative expenses and our legal and accounting
fees. We estimate these expenses to be approximately $120,000.
Indemnification and Contribution. We may provide agents, underwriters or
purchasers with indemnification against civil liabilities, including liabilities
under the Securities Act, or contribution with respect to payments that the
agents, underwriters or purchasers may make with respect to such liabilities.
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<PAGE>
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 of Onsale, Inc. as of December 31, 1998 and 1997
and for each of the three years in the period ended December 31, 1998 and the
supplementary consolidated financial statements of Egghead.com, Inc. as of
December 31, 1998 and for the year then ended, incorporated in this document by
reference to the Annual Report on Form 10-K of Onsale, Inc. and the Current
Report on Form 8-K dated November 19, 1999, as amended on January 31, 2000 have
been so incorporated in reliance on the reports of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
The financial statements and schedules incorporated by reference in this
prospectus and elsewhere in the registration statement to the extent and for
the periods indicated in their reports have been audited by Arthur Andersen
LLP, independent public accountants, and are included herein in reliance upon
the authority of said firm as experts in giving said reports.
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.
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, December 1, 1999 and
January 31, 2000.
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 sections
entitled "Risk Factors" that appear 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>
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[Egghead.com Logo]
5,000,000 Shares of
Common Stock
____________________
PROSPECTUS
February __, 2000
____________________
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.
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<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.................................. 60,000
Miscellaneous............................................ 3,483
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Total................................................. $120,000
========
</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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<PAGE>
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.
23.03 Consent of Arthur Andersen LLP, independent public accountants.
24.01 Power of Attorney.*
</TABLE>
___________________
* Previously filed.
** 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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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 Amendment No. 1 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Menlo Park, State of California on this 2nd day of
February, 2000.
EGGHEAD.COM, INC.
By: /s/ S. Jerrold Kaplan
--------------------------------------
S. Jerrold Kaplan
President and Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the 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 February 2, 2000
- ----------------------------------------
S. Jerrold Kaplan
Principal Financial and
Accounting Officer:
John E. Labbett* Senior Vice President, Chief Financial
- ---------------------------------------- Officer, Controller and Secretary February 2, 2000
John E. Labbett
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
Additional Directors:
<S> <C> <C>
George Orban* Chairman of the February 2, 2000
- ---------------------------------------- Board
George Orban
Director
- ----------------------------------------
James J. Barnett
Alan S. Fisher* Director February 2, 2000
- ----------------------------------------
Alan S. Fisher
C. Scott Gibson* Director February 2, 2000
- ----------------------------------------
C. Scott Gibson
Peter L. Harris* Director February 2, 2000
- ----------------------------------------
Peter L. Harris
Kenneth J. Orton* Director February 2, 2000
- ----------------------------------------
Kenneth J. Orton
Robert T. Wall* Director February 2, 2000
- ----------------------------------------
Robert T. Wall
Karen White* Director February 2, 2000
- ----------------------------------------
Karen White
</TABLE>
/s/ S. Jerrold Kaplan
- ----------------------------------------
S. Jerrold Kaplan
Attorney-in-fact
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Exhibit
Number Title
- ------- -------
<S> <C>
23.02 Consent of PricewaterhouseCoopers LLP, independent accountants.
23.03 Consent of Arthur Andersen LLP, independent public accountants.
</TABLE>
<PAGE>
Exhibit 23.02
-------------
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3/A of our report dated February 8, 1999 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 and our
report dated February 8, 1999, except as to the pooling of interests with
Egghead.com, Inc. described in Notes 1 and 16, which are as of November 19,
1999, relating to the supplementary consolidated financial statements of
Egghead.com, Inc. for the year ended December 31, 1998, which appears in
Egghead.com Inc.'s Form 8-K dated November 19, 1999, as amended on January 31,
2000. We also consent to the reference to us under the heading "Experts" in such
Registration Statement.
/s/ PRICEWATERHOUSECOOPERS LLP
San Jose, California
February 1, 2000
<PAGE>
Exhibit 23.03
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 27, 2000
included in Egghead.com, Inc.'s Form 8-K/A as filed on January 31, 2000, and
to all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
Portland, OR
February 1, 2000
