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As filed with the Securities and Exchange Commission on March 15, 2000
REGISTRATION STATEMENT 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
-------------------------
FAIRMARKET, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 04-3351937
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
500 UNICORN PARK DRIVE
WOBURN, MA 01801
(781) 376-5600
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
-------------------------------
SCOTT T. RANDALL
PRESIDENT AND CHIEF EXECUTIVE OFFICER
FAIRMARKET, INC.
500 UNICORN PARK DRIVE
WOBURN, MA 01801
(Name, address, including zip code, and telephone number, including area code,
of Registrant's agent for service)
With a copy to:
DAVID F. DIETZ, P.C.
GOODWIN, PROCTER & HOAR LLP
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109-2881
(617) 570-1000
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
Title of Securities to be Amount to be Registered Proposed Maximum Proposed Maximum Amount of
Registered (1) Offering Price Per Share(2) Aggregate Offering Price Registration Fee
- ----------------------------------------------------------------------------------------------------------- ------------------------
<S> <C> <C> <C> <C>
EMPLOYEE STOCK PURCHASE 500,000 $49 $24,500,000 $6,468
PLAN
Common Stock, $.001 par
value
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Plus such additional number of shares as may be required pursuant to the
plans in the event of a stock dividend, reverse stock split, split-up,
recapitalization or other similar event.
(2) This estimate is made solely for the purposes of determining the
registration fee pursuant to Rule 457(c) and is based upon the average of
the high and low price of the Common Stock on March 14, 2000.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in the requirements
of Part I are not required to be filed with the Securities and Exchange
Commission as part of this Registration Statement on Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
FairMarket, Inc. (the "Company") hereby incorporates by reference into
this Registration Statement (a) the Company's prospectus filed pursuant to Rule
424(b) under the Securities Act on March 13, 2000, (b) the description of the
Registrant's Common Stock contained in the Registration Statement on Form 8-A
(Registration Statement No. 333-92677), dated February 15, 2000, as filed with
the Securities and Exchange Commission on February 15, 2000 pursuant to Section
12(g) of the Securities Exchange Act of 1934, as amended and (c) all reports
filed pursuant to Section 13(a) or 15(d) of the Exchange Act by the Company
since March 13, 2000.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act, subsequent to the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered 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 filing of documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes hereof to the
extent that a statement contained herein or in any other subsequently filed
document which also is incorporated or deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
In accordance with Section 145 of the Delaware General Corporate Law,
Article VII of our amended and restated certificate of incorporation provides
that no director of the Company shall be personally liable to the Company or to
our stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (1) for any breach of the director's duty of
loyalty to the Company or our stockholders, (2) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of the
law, (3) in respect of unlawful dividend payments or stock redemptions or
repurchases, or (4) for any transaction from which the director derived an
improper personal benefit. In addition, our amended and restated certificate of
incorporation provides that if the Delaware General Corporation Law is amended
to authorize the further elimination or limitation of the liability of
directors, then the liability of a director of the Company shall be eliminated
or limited to the fullest extent permitted by the Delaware General Corporation
Law, as so amended.
For information regarding provisions under which a director or officer
of the Company may be insured or indemnified in any manner against any liability
which he or she may incur in his or her capacity as such, reference
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is made to Article IX of the Company's Bylaws, which provides in general that
the Company shall indemnify its officers, directors, employees and agents to the
fullest extent authorized by law.
The Company has directors' and officers' liability insurance covering
certain liabilities incurred by the officers and directors of the Company in
connection with the performance of their duties.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following is a complete list of exhibits filed or incorporated by
reference as part of this Registration Statement.
3.1 Amended and Restated Certificate of Incorporation*
3.4 Bylaws of the Company*
5.1 Opinion of Goodwin, Procter & Hoar LLP
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Goodwin, Procter & Hoar LLP (contained in
Exhibit 5.1)
24.1 Powers of attorney (see signature page)
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* Incorporated by reference to the relevant exhibit to the FairMarket, Inc.
Registration Statement on Form S-1 (SEC File No. 333-92677), as amended, as
filed with the Securities and Exchange Commission.
ITEM 9. UNDERTAKINGS
(a) The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any acts
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; notwithstanding
the foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20% change in
the maximum aggregate offering price set forth in "Calculation of
Registration Fee" table in the effective Registration Statement;
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provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) herein do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the undersigned Company pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in
the Registration Statement;
(iii) 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 the purpose of determining any
liability under the Securities Act of 1933, 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; and
(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.
(b) The undersigned Company hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the Company's annual report pursuant to Section 13(a) or 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 therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or
otherwise, the Company has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the Company of expenses incurred or paid by
a director, officer or controlling person of the Company 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 Company 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 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 Boston, Massachusetts, on March 15, 2000.
FAIRMARKET, INC.
By: /s/Scott Randall
-------------------------
Scott Randall
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Scott
Randall and John Belchers, and each of them, as her or his true and lawful
attorney-in-fact and agent, with full power of substitution, for her or him and
in her or his name, place and stead, in any and all capacities to sign any or
all amendments or post-effective amendments to this registration statement (or
any registration statement for the same offering that is to be effective upon
filing pursuant to Rule 462(b) under the Securities Act) and to file the same,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said 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 to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or her or his substitute 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 in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/Scott Randall Chairman, Chief Executive Officer March 15, 2000
- -------------------------------------------- President and Director (Principal
Scott Randall Executive Officer)
/s/John Belchers Chief Financial Officer March 15, 2000
- --------------------------------------------
John Belchers
/s/Nanda Krish Director March 15, 2000
- --------------------------------------------
Nanda Krish
/s/Jeff Drazan Director March 15, 2000
- --------------------------------------------
Jeff Drazan
/s/Richard Pallan Director March 15, 2000
- --------------------------------------------
Richard Pallan
</TABLE>
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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3.1 Amended and Restated Certificate of Incorporation*
3.4 Bylaws of the Company*
5.1 Opinion of Goodwin, Procter & Hoar LLP
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Goodwin, Procter & Hoar LLP (contained in Exhibit 5.1)
24.1 Powers of attorney (see signature page)
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* Incorporated by reference to the relevant exhibit to the FairMarket,
Inc. Registration Statement on Form S-1 (SEC File No. 333-92677), as
amended, as filed with the Securities and Exchange Commission.
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EXHIBIT 5.1
March 15, 2000
Fair Market, Inc.
500 Unicorn Park Drive
Woburn, MA 01801
Ladies and Gentlemen:
Re: REGISTRATION STATEMENT ON FORM S-8
----------------------------------
This opinion is delivered in our capacity as counsel to Fair Market,
Inc. (the "Company") in connection with the preparation and filing with the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "Act"), of a Registration Statement on Form S-8 (the "Registration
Statement") relating to 500,000 shares of Common Stock, par value $.001 per
share (the "Registered Shares"), which the Company may issue pursuant to its
2000 Employee Stock Purchase Plan (the "Plan").
As counsel for the Company, we have examined a copy of the Plan and the
Company's Amended and Restated Certificate of Incorporation and the Company's
Amended and Restated By-laws, each as presently in effect, and such records,
certificates and other documents of the Company as we have deemed necessary or
appropriate for the purposes of this opinion.
We are attorneys admitted to practice in The Commonwealth of
Massachusetts. We express no opinion concerning the laws of any jurisdiction
other than the laws of the United States of America, The Commonwealth of
Massachusetts and the State of Delaware.
Based on the foregoing, we are of the opinion that upon the issuance
and delivery of the Registered Shares against payment therefor in accordance
with the terms of the Plan and any agreement thereunder, the Registered Shares
will be legally issued, fully paid and non-assessable shares of the Company's
Common Stock.
The foregoing assumes all requisite steps will be taken to comply with
the requirements of the Act, applicable requirements of state laws regulating
the offer and sale of securities and applicable requirements of The Nasdaq Stock
Market, Inc.
We hereby consent to being named as counsel to the Company in the
Registration Statement and to the inclusion of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Goodwin, Procter & Hoar LLP
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GOODWIN, PROCTER & HOAR LLP
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 23, 2000 relating to the
financial statements which appear in the Registration Statement on Form S-1 of
FairMarket, Inc.
PRICEWATERHOUSECOOPERS LLP
March 15, 2000
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