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As filed with the Securities and Exchange Commission on October 19, 2000
Registration 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
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PcOrder.Com, Inc.
(Exact name of registrant as specified in its charter)
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Delaware 74-2720849
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
5001 Plaza on the Lake
Austin, Texas 78746
(Address of Principal Executive Offices)
1999 Stock Incentive Plan
2000 Nonstatutory Stock Option Plan
(Full Title of the Plan)
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Christina C. Jones
President and Chief Operating 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)
With copy to:
Richard Friedman
Vice President, General Counsel and Secretary
pcOrder.com, Inc.
5001 Plaza on the Lake
Austin, Texas 78746
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
======================================================================================================================
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Securities to be to be Offering Price Aggregate Offering Registration
Registered Registered Per Share (1) Price (1) Fee
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<S> <C> <C> <C> <C>
Class A Common Stock,
$0.01 par value per share: 2,331,175 $3.28 $7,646,254 $2,019
======================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and Rule 457(h) of the Securities Act of 1933, as
amended. Computation is based upon the average of the high and low prices
of the Registrant's Common Stock as reported on the Nasdaq National Market
on October 13, 2000.
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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 Annual Report on form 10-K405 for the fiscal
year ended December 31, 1999, as amended by the Form 10-K405/A
filed on April 28, 2000.
(b) Registrant's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 2000 and June 30, 2000.
(c) The description of the Class A Common Stock included in the
Registrant's registration statement on Form 8-A, filed on
February 25, 1999 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
All documents subsequently 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.
Richard Friedman, the Registrant's General Counsel, holds options to
purchase shares of Class A Common Stock, 17,500 of which are exercisable within
60 days of the date hereof.
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 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
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(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.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 1999 Stock Incentive Plan
4.2 2000 Nonstatutory Stock Option Plan
5.1 Opinion of Registrant's General Counsel
23.1 Consent of Registrant's General Counsel (contained in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP, independent auditors
24.1 Power of Attorney (see signature pages to the Registration Statement)
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 and to
include any material information with respect to the plan of
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distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration
Statement;
(2) 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; 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 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.
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 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.
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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 October 16, 2000.
pcOrder.com, Inc.
By: /s/ Ross A. Cooley
---------------------------------------
Ross A. Cooley
Chairman of the Board and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Ross A. Cooley and Christina C. Jones ,
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 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, hereby ratifying and confirming all that said attorneys-in-fact, or
his 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 on behalf of the
Registrant and in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
Chairman of the Board and Chief October 16, 2000
/s/ Ross A. Cooley Executive Officer (Principal
--------------------------------
Ross A. Cooley Executive Officer)
President and Chief Operating Officer October 16, 2000
/s/ Christina C. Jones (Principal Executive Officer)
--------------------------------
Christina C. Jones
Vice President of Finance October 16, 2000
/s/ Carleton K. Thompson (Principal Financial and Accounting Officer)
--------------------------------
Carleton K. Thompson
Director October 16, 2000
/s/ Joseph A. Liemandt
--------------------------------
Joseph A. Liemandt
Director October 16, 2000
/s/ Peter J. Barris
--------------------------------
Peter J. Barris
Director October 16, 2000
/s/ Linwood A. Lacy, Jr.
--------------------------------
Linwood A. Lacy, Jr.
Director October 16, 2000
/s/ Robert W. Stearns
--------------------------------
Robert W. Stearns
</TABLE>
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EXHIBIT INDEX
Exhibit
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Number Description
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4.1 1999 Stock Incentive Plan
4.2 2000 Nonstatutory Stock Option Plan
5.1 Opinion of Registrant's General Counsel
23.1 Consent of Registrant's General Counsel (contained in Exhibit
5.1)
23.2 Consent of Ernst & Young LLP, independent auditors
24.1 Power of Attorney (see signature pages to the Registration
Statement).
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