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As filed with the Securities and Exchange Commission on May 20, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ETOYS INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 95-4633006
(State of incorporation) (I.R.S. Employer Identification No.)
3100 OCEAN PARK BLVD., SUITE 300
SANTA MONICA, CA 90405
(Address of principal executive offices)
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1999 EMPLOYEE STOCK PURCHASE PLAN
1997 STOCK OPTION PLAN
1999 STOCK OPTION PLAN
1999 DIRECTORS' STOCK OPTION PLAN
(Full title of the Plans)
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EDWARD C. LENK
PRESIDENT AND CEO
ETOYS INC.
3100 OCEAN PARK BLVD., SUITE 225
SANTA MONICA, CA 90405
(310) 664-8100
(Name, address and telephone number, including area code, of agent for service)
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Copy to:
Amy Elizabeth Paye
Venture Law Group
A Professional Corporation
2800 Sand Hill Road
Menlo Park, California 94025
(650) 854-4488
Page 1 of 7 Pages
Exhibit Index on Page 7
(Calculation of Registration Fee on following page)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed Maximum
Maximum Amount to Maximum Aggregate Amount of
be Registered(1) Offering Price Offering Price Registration
Title of Securities to be Registered Per Share Fee
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<S> <C> <C> <C> <C>
1999 EMPLOYEE STOCK PURCHASE PLAN
Common Stock,
$0.0001 par value..................... 1,000,000 Shares $17.00(2) $ 17,000,000.00 $ 4,726.00
1997 STOCK OPTION PLAN
Common Stock,
$0.0001 par value..................... 14,249,903 Shares $ 0.77(3) $ 10,972,425.31 $ 3,050.33
1999 STOCK OPTION PLAN
Common Stock,
$0.0001 par value..................... 3,709,702 Shares $ 10.37(3) $ 38,469,609.74 $ 10,694.55
Common Stock,
$0.0001 par value..................... 21,090,298 Shares $ 20.00(4) $421,805,960.00 $117,262.06
1999 DIRECTORS' STOCK OPTION PLAN
Common Stock,
$0.0001 par value..................... 600,000 Shares $ 20.00(4) $ 12,000,000 $ 3,336.00
TOTAL 40,649,903 Shares $500,247,995.05 $139,068.94
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under any of the Plans being
registered pursuant to this Registration Statement by reason of any
stock dividend, stock split, recapitalization or any other similar
transaction effected without the receipt of consideration which results
in an increase in the number of the Registrant's outstanding shares of
Common Stock.
(2) Estimated in accordance with Rule 457(h) under the Securities Act of
1933 (the "SECURITIES ACT") solely for the purpose of calculating the
registration fee. The computation is based upon the proposed maximum
offering price per share as set forth in the Registrant's Registration
Statement on Form S-1 (File No. 333-72469), multiplied by 85%, which
is the percentage of the trading purchase price applicable to
purchases under the referenced Plan.
(3) Computed in accordance with Rule 457(h) under the Securities Act solely
for the purpose of calculating the registration fee. Computation based
on the weighted average per share exercise price (rounded to nearest
cent) of outstanding options under the referenced plan, the shares
issuable under which are registered hereby.
(4) Estimated in accordance with Rule 457(h) under the Securities Act
solely for the purpose of calculating the registration fee. The
computation with respect to unissued options is based upon the
proposed maximum offering price per share as set forth in the
Registrant's Registration Statement on Form S-1 (File No. 333-
72469).
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "COMMISSION") are hereby incorporated by reference:
(a) The Registrant's Prospectus filed on May 20, 1999 pursuant to Rule
424(b) of the Securities Act, which contains audited financial statements for
the Registrant's latest fiscal year for which such statements have been filed.
(b) Not Applicable.
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed with the Commission under
Section 12 of the Securities Exchange Act of 1934 (the "EXCHANGE ACT") on April
5, 1999, including any amendment or report filed for the purpose of updating
such description.
All documents subsequently filed by the Registrant 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 offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
part hereof from the date of filing such documents.
Item 4. DESCRIPTION OF SECURITIES. Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
As of the date of this Registration Statement, certain directors and
attorneys of Venture Law Group and an investment partnership affiliated with
Venture Law Group beneficially own an aggregate of 50,047 shares of the
Company's Common Stock.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Certificate of Incorporation reduces the liability of
a director to the corporation or its shareholders for monetary damages for
breaches of his or her fiduciary duty of care to the fullest extent permissible
under Delaware law. The Bylaws of the Registrant further provide for
indemnification of corporate agents to the maximum extent permitted by the
Delaware General Corporation Law. In addition, the Registrant has entered into
Indemnification Agreements with its officers and directors.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable.
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Item 8. EXHIBITS.
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Exhibit
Number
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<S> <C>
5.1 Opinion of Venture Law Group, a Professional Corporation.
23.1 Consent of Venture Law Group, a Professional Corporation (included in
Exhibit 5.1).
23.2 Consent of Independent Auditors.
24.1 Powers of Attorney (see page 6).
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Item 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales
are being made, a post-effective amendment to this registration statement 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.
(2) that, for purposes 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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Insofar as the 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 a successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered hereunder, the Registrant will, unless in the opinion of its counsel
the question has already been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question of whether such indemnification
by it is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
[Signature Pages Follow]
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, eToys Inc., a corporation organized and existing under the laws of
the State of Delaware, 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 Santa Monica, State of California, on this May
20, 1999.
eToys Inc.
By: /s/ Edward C. Lenk
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Edward C. Lenk
President, Chief Executive Officer and
Uncle of the Board
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Edward C. Lenk and Steven J. Schoch,
jointly and severally, his or her attorneys-in-fact and agents, each with the
power of substitution and resubstitution, for him or her and in his or her name,
place or stead, in any and all capacities, to sign any amendments to this
Registration Statement on Form S-8, and to file such amendments, together with
exhibits and other documents in connection therewith, with the Securities and
Exchange Commission, granting to each attorney-in-fact and agent, 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 as he or she might or could do in
person, and ratifying and confirming all that the attorney-in-facts and agents,
or his or her substitute or substitutes, may 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
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<S> <C> <C>
/S/ EDWARD C. LENK President, Chief Executive Officer and May 20, 1999
- ------------------------------------ Uncle of the Board (Principal Executive
Edward C. Lenk Officer)
/S/ STEVEN J. SCHOCH Chief Financial Officer (Principal May 20, 1999
- ------------------------------------ Financial and Accounting Officer)
Steven J. Schoch
/S/ PETER C.M. HART Director May 20, 1999
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Peter C.M. Hart
/S/ TONY HUNG Director May 20, 1999
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Tony Hung
/S/ MICHAEL MORITZ Director May 20, 1999
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Michael Moritz
/S/ DANIEL NOVA Director May 20, 1999
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Daniel Nova
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INDEX TO EXHIBITS
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<CAPTION>
Exhibit
Number
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<S> <C>
5.1 Opinion of Venture Law Group, a Professional Corporation
23.1 Consent of Venture Law Group, a Professional Corporation
(included in Exhibit 5.1).
23.2 Consent of Independent Auditors.
24.1 Powers of Attorney (see page 6).
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May 20, 1999
eToys Inc.
3100 Ocean Park Blvd., Suite 300
Santa Monica, CA 90405
REGISTRATION STATEMENT ON FORM S-8
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Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form S-8 (the
"REGISTRATION STATEMENT") executed by eToys Inc. (the "COMPANY") and to be filed
with the Securities and Exchange Commission (the "COMMISSION") in connection
with the registration under the Securities Act of 1933, as amended, of a total
of 40,649,903 shares of the Company's Common Stock (the "SHARES") reserved for
issuance under the Company's 1997 Stock Plan, 1999 Stock Plan, 1999 Employee
Stock Purchase Plan and 1999 Directors' Stock Option Plan. As your counsel in
connection with this transaction, we have examined the proceedings taken and are
familiar with the proceedings proposed to be taken by you in connection with the
sale and issuance of the Shares.
It is our opinion that the Shares, when issued and sold in the manner
described in the Registration Statement, will be legally and validly issued,
fully paid and nonassessable. We express no opinion as to matters governed by
any laws other than the laws of the State of California, the General Corporate
Law of the State of Delaware and the federal securities laws of the United
States of America.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever it appears in the
Registration Statement and in any amendment to it.
Sincerely,
VENTURE LAW GROUP
A Professional Corporation
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1999 Employee Stock Purchase Plan, 1997 and 1999
Stock Option Plans and 1999 Directors' Stock Option Plan of eToys Inc. of our
report dated May 3, 1999, with respect to the financial statements of eToys
Inc. included in its Registration Statement on Form S-1 (File No. 333-72469)
as amended, filed with the Securities and Exchange Commission.
Ernst & Young LLP
Los Angeles, California
May 18, 1999
