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As filed with the Securities and Exchange Commission on July 1, 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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BabyCenter, Inc. 1997 Stock Plan
(Full title of the Plan)
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EDWARD C. LENK
PRESIDENT AND CEO
ETOYS INC.
3100 OCEAN PARK BLVD., SUITE 300
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 9 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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<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum Amount of
Maximum Amount to Offering Price Aggregate Registration
Title of Securities to be Registered be Registered(1) Per Share Offering Price Fee
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<S> <C> <C> <C> <C>
BabyCenter, Inc. 1997 Stock Plan
Common Stock,
$0.0001 par value..................... 2,716,676 Shares $5.86(2) $15,919,721.36 $4,425.68
</TABLE>
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Plan being registered
pursuant to this Registration Statement by reason of any stock
dividend, stock split, recapitalization or any other similar
transaction which is effected without the receipt of consideration and
results in an increase in the number of the Registrant's outstanding
shares of Common Stock.
(2) 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.
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.
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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 two investment partnerships affiliated
with Venture Law Group beneficially own an aggregate of 80,224 shares of the
Company's Common Stock.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL")
provides that a corporation may indemnify directors and officers, as well as
other employees and individuals, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement in connection with
specified actions, suits or proceedings, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the corporation--a "derivative action"), if they acted in good faith and in a
manner they reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe their conduct was unlawful. A similar
standard is applicable in the case of derivative actions, except that
indemnification only extends to expenses (including attorneys' fees) incurred
in connection with the defense or settlement of such actions, and the statute
requires court approval before there can be any indemnification where the
person seeking indemnification has been found liable to the corporation. The
statute provides that it is not exclusive of other indemnification that may
be granted by a corporation's charter, bylaws, disinterested director vote,
stockholder vote, agreement or otherwise.
The Registrant's Restated Certificate of Incorporation limits the
liability of directors to the full extent permitted by Delaware law. Delaware
law provides that a corporation's certificate of incorporation may contain a
provision eliminating or limiting the personal liability of directors for
monetary damages for breach of their fiduciary duties as directors, except
for liability (i) for any breach of their duty of loyalty to the corporation
or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) for
unlawful payments of dividends or unlawful stock repurchases or redemptions
as provided in Section 174 of the DGCL or (iv) for any transaction from which
the director derived an improper personal benefit. The Registrant's Bylaws
provide that the Registrant shall indemnify its directors and officers and
may indemnify its employees and agents to the fullest extent permitted by
law. The Registrant believes that indemnification under its Bylaws covers at
least negligence and gross negligence on the part of indemnified parties.
The Registrant intends to enter into agreements which indemnify its
directors and executive officers. These agreements, among other things,
indemnify the Registrant's directors and officers for certain expenses
(including attorneys' fees), judgments, fines and settlement amounts incurred
by such persons in any action or proceeding, including any action by or in
the right of the Registrant, arising out of such person's services as a
director or officer of the Registrant, any subsidiary of the Registrant or
any other company or enterprise to which the person provides services at the
request of the Registrant. The Registrant believes that these provisions and
agreements are necessary to attract and retain qualified directors and
officers.
At present, there is no pending litigation or proceeding involving
any director, officer, employee or agent of the Registrant where
indemnification will be required or permitted. The Registrant is not aware of
any threatened litigation or proceeding that might result in a claim for such
indemnification.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable.
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Item 8. EXHIBITS.
<TABLE>
<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 p. 6).
</TABLE>
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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 July 1, 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.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ Edward C. Lenk President, Chief Executive Officer and July 1, 1999
- ------------------------------------ Uncle of the Board (Principal Executive
Edward C. Lenk Officer)
/s/ Steven J. Schoch Chief Financial Officer (Principal July 1, 1999
- ------------------------------------ Financial and Accounting Officer)
Steven J. Schoch
/s/ Matthew Glickman Director July 1, 1999
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Matthew Glickman
/s/ Peter C.M. Hart Director July 1, 1999
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Peter C.M. Hart
/s/ Tony Hung Director July 1, 1999
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Tony Hung
/s/ Michael Moritz Director July 1, 1999
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Michael Moritz
/s/ Daniel Nova Director July 1, 1999
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Daniel Nova
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Page
Number No.
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<S> <C> <C>
5.1 Opinion of Venture Law Group, a Professional Corporation 8
23.1 Consent of Venture Law Group, a Professional Corporation 8
(included in Exhibit 5.1).
23.2 Consent of Independent Auditors. 9
24.1 Powers of Attorney (see p. 6). 6
</TABLE>
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July 1, 1999
eToys Inc.
3100 Ocean Park Blvd., Suite 300
Santa Monica, CA 90405
REGISTRATION STATEMENT ON FORM S-8
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 2,716,676 shares of the Company's Common Stock (the
"SHARES") reserved for issuance under the Company's BabyCenter, Inc. 1997
Stock 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 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the BabyCenter, Inc. 1997 Stock 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
June 30, 1999
