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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 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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BEYOND.COM CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 94-3212136
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
1195 WEST FREMONT AVENUE
SUNNYVALE, CALIFORNIA 94087
(408) 616-4200
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
BEYOND.COM CORPORATION 1999 STOCK INCENTIVE PLAN
BEYOND.COM CORPORATION 1999 NON-QUALIFIED STOCK OPTION PLAN
BEYOND.COM CORPORATION 1999 EMPLOYEE STOCK PURCHASE PLAN
----------------------------------
(Full Title of Plans)
MARK L. BREIER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
BEYOND.COM CORPORATION
1195 WEST FREMONT AVENUE
SUNNYVALE, CALIFORNIA 94087
(408) 616-4200
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
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Copy to:
RICHARD SCUDELLARI, ESQ.
MORRISON & FOERSTER LLP
755 PAGE MILL ROAD
PALO ALTO, CA 94304-1018
(415) 813-5600
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CALCULATION OF REGISTRATION FEE
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MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED BE REGISTERED PER SHARE(1) PRICE(1) FEE
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<S> <C> <C> <C> <C>
Common Stock, $.001
par value per share.......... 3,750,000 $16.875 $63,281,250.00 $17,593.00
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(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rules 457(h) and 457(c) under the Securities Act of 1933
and based upon the average of the high and low prices reported on the
Nasdaq National Market on September 1, 1999.
In addition, pursuant to Rule 416(c) under the Securities Act, this
Registration Statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plans described herein.
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PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part 1 of Form
S-8 (plan information and registrant information and employee plan annual
information) will be sent or given to employees as specified by Securities and
Exchange Commission Rule 428(b)(1). Such documents need not be filed with the
Securities and Exchange Commission either as part of this Registration Statement
or as prospectuses or prospectus supplements pursuant to Rule 424. These
documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Form S-8 (Part II hereof), taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference in this Registration
Statement the following documents and information previously filed with the
Securities and Exchange Commission (the "Commission"):
1. The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998, filed pursuant to Section 13 of the Securities Exchange
Act of 1934 (the "Exchange Act").
2. The Company's Current Report on Form 10-Q for the quarters ended
March 31, 1999 and June 30, 1999, filed pursuant to Section 13 of the Exchange
Act.
3. The Registrant's Current Reports on Form 8-K filed on January 21,
1999, March 3, 1999 and April 13, 1999.
4. The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed with the Commission on June
12, 1998.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this Registration
Statement, and 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 a part hereof from the date
of filing of such documents.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable
ITEM 5. INTERESTS OF NAMED EXPERTS.
Not Applicable
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law permits a
corporation to include in its charter documents, and in agreements between the
corporation and its directors and officers, provisions expanding the scope of
indemnification beyond the indemnification specifically provided by the current
law.
Article IX of our Certificate of Incorporation, as amended, provides
for the indemnification of directors to the fullest extent permissible under
Delaware law.
Article VI of our Bylaws provides for the indemnification of officers,
directors and third parties acting on our behalf if such person acted in good
faith and in a manner reasonably believed to be in, and not opposed to, our best
interest and, with respect to any criminal action or proceeding, the indemnified
party had no reason to believe his or her conduct was unlawful.
We have entered into indemnification agreements with our directors and
executive officers, in addition to providing indemnification in our Bylaws, and
intend to enter into indemnification agreements with any new directors and
executive officers in the future.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable
ITEM 8. EXHIBITS.
4.1 Form of Certificate of Incorporation (incorporated herein by
reference to Exhibit 3.1 to the Registrant's Registration Statement on Form S-1
(Reg. No. 333-51121), as amended, filed with the Commission on June 17, 1998.)
4.2 Form of Bylaws of the Registrant (incorporated herein by reference
to Exhibit 3.2 to the Registrant's Registration Statement on Form S-1 (Reg. No.
333-51121), as amended, filed with the Commission on June 17, 1998.)
5.1 Opinion of Morrison & Foerster LLP
23.1 Consent of Morrison & Foerster LLP (contained in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP, Independent Auditors
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24.1 Power of Attorney (see Signature Page)
ITEM 9. UNDERTAKINGS.
(a) 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 the purpose of determining any liability under the
Securities Act of 1933, as amended (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 bring registered which remain unsold at
the termination of the offering.
(b) 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 15(d) of the Exchange
Act that is incorporated by reference in this 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 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 the
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, Beyond.com Corporation, 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 Sunnyvale, State of
California, on September 1, 1999.
Beyond.com Corporation
By: /s/ Mark L. Breier
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Mark L. Breier
President, Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Mark
L. Breier and Michael J. Praisner, and each of them, as attorneys-in-fact, each
with the power of substitution, for him in any and all capacities, to sign any
amendment to this Registration Statement and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting to said attorneys-in-fact, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming the said
attorney-in-fact or his substitute or substitutes, 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 by the following persons in the
capacities and on the date indicated.
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<CAPTION>
Signature Capacity Date
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<S> <C> <C>
/s/ Mark L. Breier President, Chief Executive September 1, 1999
- ---------------------------------------- Officer and Director
Mark L. Breier (Principal Executive
Officer)
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<S> <C> <C>
/s/ Michael J. Praisner Vice President, Finance & September 1, 1999
- ---------------------------------------- Administration, Chief
Michael J. Praisner Financial Officer
(Principal Financial and
Accounting Officer)
/s/ William S. McKiernan Chairman of the Board of September 1, 1999
- ---------------------------------------- Directors
William S. McKiernan
/s/ Douglas Carlston Director September 1, 1999
- ----------------------------------------
Douglas Carlston
/s/ John S. Chen Director September 1, 1999
- ----------------------------------------
John S. Chen
/s/ Bert Kolde Director September 1, 1999
- ----------------------------------------
Bert Kolde
/s/ Ronald S. Posner Director September 1, 1999
- ----------------------------------------
Ronald S. Posner
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INDEX TO EXHIBITS
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EXHIBIT
NUMBER DOCUMENT
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4.1 Form of Certificate of Incorporation (incorporated herein by reference
to Exhibit 3.1 to the Registrant's Registration Statement on Form S-1
(Reg. No. 333-51121), as amended, filed with the Commission on June
17, 1998.)
4.2 Form of Bylaws of the Registrant (incorporated herein by reference to
Exhibit 3.2 to the Registrant's Registration Statement on Form S-1
(Reg. No. 333-51121), as amended, filed with the Commission on June
17, 1998.)
5.1 Opinion of Morrison & Foerster LLP
23.1 Consent of Morrison & Foerster LLP (contained in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP, Independent Auditors
24.1 Power of Attorney (see Signature Page)
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EXHIBIT 5.1
September 1, 1999
Beyond.Com Corporation
1195 West Fremont Avenue
Sunnyvale, California 94087
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
Beyond.com Corporation, a Delaware corporation (the "Company"), with the
Securities and Exchange Commission on September 1, 1999 (the "Registration
Statement"), relating to the registration under the Securities Act of 1933, as
amended, of 3,750,000 shares of the Company's Common Stock, $0.001 par value
(the "Shares"). The Shares are reserved for issuance pursuant to the Company's
1999 Stock Incentive Plan, 1999 Non-Qualified Stock Option Plan and 1999
Employee Stock Purchase Plan. As counsel to the Company, we have examined the
proceedings taken by the Company in connection with the registration of the
Shares.
It is our opinion that the Shares, when issued and sold in the manner
described in the Registration Statement and the related Prospectus, will be
legally and validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us in the Registration
Statement and any amendments thereto.
Very truly yours,
/s/ Morrison & Foerster LLP
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EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the 1999 Stock Incentive Plan, the 1999
Non-Qualified Stock Option Plan and the 1999 Employee Stock Purchase Plan of
Beyond.com Corporation of our report dated January 11, 1999 with respect to the
consolidated financial statements of Beyond.com Corporation included in its
Annual Report (Form 10-K) for the year ended December 31, 1998 and the related
financial statement schedule, included therein filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
San Jose, California
August 31, 1999
