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As filed with the Securities and Exchange Commission on May 26, 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
______________________________________________
pcOrder.com, Inc.
(Exact name of registrant as specified in its charter)
______________________________________________
Delaware 74-2720849
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
5001 Plaza on the Lake
Austin, Texas 78746
(Address of Principal Executive Offices)
1996 Stock Option Plan
1999 Stock Incentive Plan
(Full Title of the Plans)
______________________________________________
James J. Luttenbacher
Chief Financial Officer
pcOrder.com, Inc.
5001 Plaza on the Lake
Austin, Texas 78746
(Name and Address of Agent for Service)
(512) 684-1100
(Telephone Number, Including Area Code, of Agent For Service)
Copies to:
William D. Sherman, Esq.
Justin L. Bastian, Esq.
Rochelle A. Krause, Esq.
Morrison & Foerster LLP
755 Page Mill Road
Palo Alto, CA 94304
(650) 813-5600
__________________________________________________
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Securities to to be Offering Price Aggregate Offering Registration
be Registered Registered Per Share(1) Price(1) Fee
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock, 4,791,515 $32.9688 $157,970,500 $43,916
$0.01 par value per
share
===========================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by pcOrder.com, Inc. (the "Registrant") with
the Securities and Exchange Commission (the "Commission") are incorporated by
reference herein:
(a) The Registrant's prospectus filed pursuant to Rule 424(b) of the
Securities Act, as amended, (the "Securities Act"), relating to the Registration
Statement on Form S-1 (No. 333-62985) (the "S-1 Registration Statement"), as
originally filed on September 4, 1998 and subsequently amended, which S-1
Registration Statement was declared effective on February 25, 1999, which
includes audited financial statements for the Registrant's latest fiscal year.
(b) The Description of the Class A Common Stock included in the
Description of Capital Stock section of the Registrant's S-1 Registration
Statement.
All documents filed by the Registrant with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, 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 into this Registration Statement and to be a
part hereof from the date of filing of such documents. Any statement contained
in a document incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any 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.
The Registrant's Certificate of Incorporation provides that the Registrant
shall indemnify to the fullest extent permitted by Section 145 ("Section 145")
of the Delaware General Corporation Law ("DGCL"), as it now exists or as it may
be amended. Generally, Section 145 provides a detailed statutory framework
covering indemnification of officers and directors against liabilities and
expenses arising out of legal proceedings brought or threatened to be brought
against them by reason of their being or having been directors or officers. In
particular, Section 145 provides
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that a corporation shall indemnify its officers and directors for all reasonable
expenses (including attorney's fees) of such legal proceedings when any such
officer or director is successful on the merits. Further, Section 145 provides
that a corporation may indemnify its officers and directors, even if any such
officer or director is not successful on the merits:
(i) for expenses, judgments, fines and amounts paid in settlement of such
proceedings (other than a derivative suit), as long as such officer or
director acted in good faith and in a manner he or she 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 his or her conduct was unlawful; and
(ii) for the expenses of a derivative suit (a suit brought by the corporation
or in the name of the corporation by a stockholder alleging breach by
such officer or director of a duty owed to the corporation), as long as
such officer or director acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
corporation. In the event such director or officer is adjudged liable to
the corporation, no indemnification may be made by the corporation
unless the Delaware Court of Chancery determines that, despite such
adjudication of liability, in view of all the circumstances, such
officer or director is fairly and reasonably entitled to
indemnification.
In either of the above cases, indemnification may be made only after a
determination that the applicable standard of conduct has been met. Such
determination may be made by either a majority of the directors who are not
party to such proceeding, a committee of such directors, independent legal
counsel or the stockholders.
Additionally, the Registrant's Certificate of Incorporation provides for the
elimination of personal liability of a director for breach of fiduciary duty, as
permitted by Section 102(b)(7) of the DGCL. Thus, a director of the Registrant
shall not be personally liable to the Registrant or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the Registrant
or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL (unlawful payment of dividends), 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 executive officers, and may indemnify its officers, employees and
other agents, to the full extent permitted by law. The Registrant believes that
indemnification under its Bylaws covers at least negligence and gross negligence
on the part of an indemnified party. The Registrant's Bylaws also permit the
Registrant to advance expenses incurred by an indemnified party in connection
with the defense of any action or proceeding arising out of such party's status
or service as a director, officer or employee or other agent of the Registrant.
Such indemnified party shall repay such advances if it is ultimately determined
that such party is not entitled to indemnification. The Registrant believes
that its Certificate of Incorporation and Bylaw provisions are necessary to
attract and retain qualified persons as directors and officers. The Registrant
also maintains directors' and officer's liability insurance.
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At present the Registrant is not aware of any pending litigation or
proceeding involving any director, officer, employee or agent of the Registrant
in which 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.
Item 8. Exhibits.
4.1 Certificate of Incorporation of the Registrant, as amended
(incorporated by reference to Exhibits 3.1 and 3.2 to Registrant's
Registration Statement on Form S-1 (File No. 333-62985)).
4.2 Bylaws of the Registrant (incorporated by reference to Exhibit 3.3 to
Registrant's Registration Statement on Form S-1 (File No. 333-62985)).
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).
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(i) to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement
and to include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
(ii) that, for the purpose 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;
(iii) 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.
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The undersigned Registrant hereby further 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 (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 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.
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 expenses incurred 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
pcOrder.com, Inc. certifies that it has reasonable grounds to believe that it
meets all 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 Austin, State of Texas, on May 26, 1999.
pcOrder.com, Inc.
By: /s/ ROSS A. COOLEY
____________________________________________
Ross A. Cooley
Chairman, Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints, severally and not jointly, Ross A. Cooley,
Christina C. Jones, James J. Luttenbacher, Joseph A. Liemandt, Peter J. Barris,
Linwood A. Lacy, Jr. and Robert W. Stearns, with full power to act alone, his or
her true and lawful attorneys-in-fact, with the power of substitution, for such
person and in such person's name, place and stead, in any and all capacities, to
sign any and all amendments (including post-effective amendments) to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact full power and authority to do
and perform each and every act and deed requisite and necessary to be done as
fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact 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 dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ ROSS A. COOLEY Chairman and Chief Executive Officer May 26, 1999
------------------------------- (Principal Executive Officer)
Ross A. Cooley
/s/ CHRISTINA C. JONES President and Chief Operating Officer May 26, 1999
------------------------------- (Principal Executive Officer)
Christina C. Jones
/s/ JAMES J. LUTTENBACHER Vice President, Chief Financial May 26, 1999
------------------------------- Officer and Secretary (Principal
James J. Luttenbacher Financial Officer and Accounting
Officer)
/s/ JOSEPH A. LIEMANDT Director May 26, 1999
-------------------------------
Joseph A. Liemandt
Director
-------------------------------
Peter J. Barris
/s/ LINWOOD A. LACY, JR. Director May 26, 1999
-------------------------------
Linwood A. Lacy, Jr.
/s/ ROBERT W. STEARNS Director May 26, 1999
-------------------------------
Robert W. Stearns
</TABLE>
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EXHIBIT INDEX
Exhibit
Number Description
- ------ ----------------------------------------------------------------
4.1 Certificate of Incorporation of the Registrant, as amended
(incorporated by reference to Exhibits 3.1 and 3.2 to Registrant's
Registration Statement on Form S-1 (File No. 333-62985)).
4.2 Bylaws of the Registrant (incorporated by reference to Exhibit 3.3 to
Registrant's Registration Statement on Form S-1 (File No. 333-62985)).
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
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MORRISON & FOERSTER LLP
Palo Alto, California
May 26, 1999
pcOrder.com, Inc.
5001 Plaza on the Lake
Austin, TX 78746
Madames and Gentlemen:
At your request, we have examined the Registration Statement on Form S-8
executed by you on May 26, 1999, and to be filed with the Securities and
Exchange Commission (the "SEC") in connection with the registration under the
Securities Act of 1933, as amended, of an aggregate of 4,791,515 shares of your
Class A common stock, $0.01 par value (the "Class A Common Stock") which are
issuable under your 1996 Stock Option Plan and 1999 Stock Incentive Plan
(collectively, the "Stock Plans").
As your counsel in connection with the above Registration Statement, we have
examined the proceedings taken by you in connection with the adoption of the
Stock Plans and the authorization of the issuance of the shares of Class A
Common Stock under the Stock Plans (the "Plan Shares") and such documents as we
have deemed necessary to render this opinion.
Based upon the foregoing, it is our opinion that the Plan Shares, when issued
and outstanding pursuant to the terms of the Stock Plans, will be validly
issued, fully paid and nonassessable shares of Class A Common Stock.
We consent to the use of this opinion as an exhibit to the above Registration
Statement.
Very truly yours,
/s/ Morrison & Foerster
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Exhibit 23.2
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CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1996 Stock Option Plan and 1999 Stock Incentive
Plan of pcOrder.com, Inc. of our report dated February 5, 1999, with respect to
the financial statements of pcOrder.com, Inc. included in its Registration
Statement on Form S-1 (No. 333-62985) filed with the Securities and Exchange
Commission.
/s/ ERNST & YOUNG LLP
Austin, Texas
May 24, 1999
