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As filed with the Securities and Exchange Commission on October 18, 2000
REGISTRATION STATEMENT 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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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)
2000 EMPLOYEE STOCK OPTION AND INCENTIVE PLAN
(Full Title of the Plan)
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EILEEN RUDDEN
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
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED (1) SHARE PRICE REGISTRATION FEE
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2000 EMPLOYEE STOCK OPTION 1,500,000 shares $2.375 (2) $ 3,562,500 $941.00
AND INCENTIVE PLAN
Common Stock, $.001 par
value
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(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 on the average of the
high and low prices of the Common Stock on October 16, 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
Company's Common Stock contained in the Registration Statement on Form 8-A,
dated February 9, 2000, as filed with the Securities and Exchange Commission on
February 10, 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, including the prospectus filed pursuant to Rule 424(b), 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 the Company's amended and restated certificate of incorporation
provides that no director of the Company shall be personally liable to the
Company or to its 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 its 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, the Company's 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.
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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 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.
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3.1 Amended and Restated Certificate of Incorporation of the Company*
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 October 18, 2000. FAIRMARKET, INC.
By: /s/ Eileen Rudden
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Eileen Rudden
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Eileen
Rudden and Lisa McGrath, and each of them, as his or her true and lawful
attorney-in-fact and agent, with full power of substitution, for his or her 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 she or he might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent 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.
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SIGNATURE TITLE DATE
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/s/ Eileen Rudden President, Chief Executive Officer and October 18, 2000
----------------------------- Director (Principal
Eileen Rudden Executive Officer)
/s/ James O'Neill Controller October 18, 2000
----------------------------- (Principal Financial and Accounting Officer)
James O'Neill
/s/ Scott T. Randall Chairman and October 18, 2000
----------------------------- Chairman of the Board of Directors
Scott T. Randall
/s/ Nanda Krish Director October 18, 2000
-----------------------------
Nanda Krish
/s/ Richard Pallan Director October 18, 2000
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Richard Pallan
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EXHIBIT INDEX
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EXHIBIT
NUMBER DESCRIPTION
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3.1 Amended and Restated Certificate of Incorporation of the Company*
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.
