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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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barnesandnoble.com inc.
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of
Incorporation or Organization)
13-4048787
(I.R.S. Employer Identification No.)
76 Ninth Avenue, 11th Floor
New York, New York 10011
(Address of Principal Executive Offices) (Zip Code)
barnesandnoble.com inc. 1999 Incentive Plan
(Full Title of the Plan)
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Jonathan Bulkeley
Chief Executive Officer
barnesandnoble.com inc.
76 Ninth Avenue, 11th Floor
New York, New York 10011
(Name and Address of Agent for Service)
(212) 414-6000
(Telephone Number, Including Area Code,
of Agent for Service)
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Copies to:
Jay M. Dorman, Esq.
Robinson Silverman Pearce Aronsohn & Berman LLP
1290 Avenue of the Americas
New York, New York 10104
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Registration
to be Registered Registered (1) Per Share(2) Offering Price(2) Fee(2)
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<S> <C> <C> <C> <C>
Common Stock, par 3,687,187 $ 3.48 $ 12,831,411 $ 3,567
value $.001 3,128,651 4.35 13,609,632 3,783
9,200,046 4.06 37,352,187 10,384
345,000 6.09 2,101,050 584
9,139,116 18.00 164,504,088 45,733
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25,500,000 $230,398,368 $64,051
</TABLE>
(1) The maximum number of shares as to which options may be granted under
the employee benefit plans referred to above. In addition, in
accordance with Rule 416, this Registration Statement also covers an
indeterminate number of shares as may become issuable by reason of the
anti-dilution provisions of such plans.
(2) Estimated solely for purposes of calculating the registration fee
in accordance with Rule 457(h) under the Securities Act as follows:
(i) in the case of shares of Class A Common Stock which may be purchased
upon exercise of outstanding options, the fee is calculated on the basis of
the price at which the options may be exercised; and (ii) in the case of
shares of Class A Common Stock for which options have not yet been granted,
the fee is calculated on the basis of the initial public offering price of
the Class A Common Stock.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by barnesandnoble.com inc., a Delaware corporation
(the "Company"), are incorporated herein by reference: (1) the Company's
Registration Statement on Form S-1 filed with the Commission on September 24,
1998, as amended (Registration No. 333-64211); and (2) the description of the
Company's Common Stock contained in Item 1 of the Company's Registration
Statement on Form 8-A filed with the Commission on May 14, 1999.
All documents filed by the Company pursuant to Section 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), subsequent to the date this Registration Statement is filed
with the Commission, and prior to the filing of a post-effective amendment which
indicates that all securities offered by this Registration Statement have been
sold or which deregisters all such 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 the filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated herein by
reference 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
subsequently filed document which also is, or is deemed to be, incorporated by
reference herein modifies or supersedes such prior 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, except as indicated herein.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Certain legal matters in connection with the shares of Common
Stock being registered hereby have been passed upon for the Company by Robinson
Silverman Pearce Aronsohn & Berman LLP, 1290 Avenue of the Americas, New York,
New York 10104. Michael N. Rosen, the Chairman of Robinson Silverman Pearce
Aronsohn & Berman LLP, is a director and Secretary of the Company.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law and
Article X of the Company's Amended and Restated By-laws provide for the
indemnification of the Company's directors and officers in a variety of
circumstances, which may include liabilities under the Securities Act of 1933,
as amended (the "Securities Act").
Article X of the Company's Amended and Restated By-laws
generally requires the Company to indemnify its directors and officers against
all liabilities (including judgments, settlements, fines and penalties) and
reasonable expenses incurred in connection with the investigation, defense,
settlement or appeal of any type of action, whether instituted by a third party
or a stockholder (either directly or derivatively) and including specifically,
but without limitation, actions brought under the Securities Act and/or the
Exchange Act.
In addition, the Company's Amended and Restated Certificate of
Incorporation contains a provision which eliminates the personal liability of a
director to the Company and its stockholders for certain
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breaches of his or her fiduciary duty of care as a director. This provision does
not, however, eliminate or limit the personal liability of a director (i) for
any breach of such director's duty of loyalty to the Company 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 the Delaware
statutory provision making directors personally liable, under a negligence
standard, for unlawful dividends or unlawful stock repurchases or redemptions,
or (iv) for any transaction from which the director derived an improper personal
benefit. This provision offers persons who serve on the Board of Directors of
the Company protection against awards of monetary damages resulting from
breaches of their duty of care (except as indicated above), including grossly
negligent business decisions made in connection with takeover proposals for the
Company. As a result of this provision, the ability of the Company or a
stockholder thereof to successfully prosecute an action against a director for a
breach of his duty of care has been limited. However, the provision does not
affect the availability of equitable remedies such as an injunction or
rescission based upon a director's breach of his duty of care. The Commission
has taken the position that the provision will have no effect on claims arising
under the federal securities laws.
Item 7. Exemption from Registration Claimed.
Restricted securities, if any, to be reoffered or resold
pursuant to this Registration Statement will be sold pursuant to a prospectus
included in this Registration Statement or pursuant to Section 4(1) of the
Securities Act or Rule 144 under the Securities Act, and were originally issued
by the Company pursuant to an exemption under Section 4(2) of the Securities
Act.
Item 8. Exhibits.
3.1 Form of Amended and Restated Certificate of Incorporation of
Registrant. Incorporated by reference to Exhibit 3.1 of the
Registrant's Pre-Effective Amendment No. 2 Registration
Statement on Form S-1, filed with the Securities and Exchange
Commission on May 6, 1999 (Registration No. 333-64211).
3.2 Form of Amended and Restated By-laws of Registrant.
Incorporated by reference to Exhibit 3.2 of the Registrant's
Pre-Effective Amendment No. 2 Registration Statement on Form
S-1, filed with the Securities and Exchange Commission on May
6, 1999 (Registration No. 333-64211).
5.1 Opinion of Robinson Silverman Pearce Aronsohn & Berman LLP,
counsel to the Company, as to certain legal matters in
connection with the shares of Class A Common Stock being
registered.
10.1 Form of barnesandnoble.com inc. 1999 Incentive Plan
Incorporated by Reference to Exhibit 10.1 of the Registrant's
Pre-Effective Amendment No. 3 Registration Statement on Form
S-1, filed with the Securities and Exchange Commission on
May 24, 1999 (Registration No. 333-64211).
10.2 Form of Second Amended and Restated Limited Liability
Company Agreement of barnesandnoble.com llc. Incorporated by
reference to Exhibit 10.6 of the Registrant's Pre-Effective
Amendment No. 2 Registration Statement on Form S-1, filed with
the Securities and Exchange Commission on May 6, 1999
(Registration No. 333-64211).
10.3 Form of Stockholders Agreement between Registrant and
Bertelsman AG. Incorporated by reference to Exhibit 10.7 of
the Registrant's Pre-Effective Amendment No. 2 Registration
Statement on Form S-1, filed with the Securities and Exchange
Commission on May 6, 1999 (Registration No. 333-64211).
23.1 Consent of Robinson Silverman Pearce Aronsohn & Berman LLP
(included as part of Exhibit 5.1).
23.2 Independent Auditor's Consent of BDO Seidman, LLP.
24.1 Power of Attorney (included on signature page of this
Registration Statement).
Item 9. Undertakings.
1. The undersigned registrant hereby undertakes:
(a) 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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this
Registration Statement (or the most recent
post-effective amendment hereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth
in this 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
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of the estimated maximum 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 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement.
(iii) 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;
provided, however, that paragraphs (1)(a)(i) and (1)(a)(ii) will 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 registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(b) 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.
(c) 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.
2. 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.
3. 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 provisions described under Item 6 above, 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 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 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 New York, State of New York, on the 24th day of
May, 1999.
barnesandnoble.com inc.
By: /s/ Leonard Riggio
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Leonard Riggio, Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below does hereby constitute and appoint Leonard Riggio,
Jonathan Bulkeley and Michael N. Rosen, and each and any one of them, his true
and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including, without limitation,
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 and
agents, and each of them, 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 attorneys-in-fact and
agents or any of them, or their 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 dates indicated.
<TABLE>
<CAPTION>
Name Title Date
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<S> <C> <C>
/s/ Leonard Riggio Chairman of the Board May 24, 1999
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Leonard Riggio
/s/ Jonathan Bulkeley Chief Executive Officer May 24, 1999
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Jonathan Bulkeley
/s/ Marie J. Toulantis Chief Financial Officer May 24, 1999
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Marie J. Toulantis
/s/ Michael N. Rosen Secretary and a Director May 24, 1999
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Michael N. Rosen
/s/ Stephen Riggio Director May 24, 1999
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Stephen Riggio
/s/ Thomas Middelhoff Director May 24, 1999
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Thomas Middelhoff
/s/ Markus Wilhelm Director May 24, 1999
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Markus Wilhelm
/s/ Klaus Eierhoff Director May 24, 1999
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Klaus Eierhoff
</TABLE>
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EXHIBIT INDEX
Exhibit No. Document
3.1 Form of Amended and Restated Certificate of Incorporation of
Registrant. Incorporated by reference to Exhibit 3.1 of the
Registrant's Pre-Effective Amendment No. 2 Registration
Statement on Form S-1, filed with the Securities and Exchange
Commission on May 6, 1999 (Registration No. 333-64211).
3.2 Form of Amended and Restated By-laws of Registrant.
Incorporated by reference to Exhibit 3.2 of the Registrant's
Pre-Effective Amendment No. 2 Registration Statement on Form
S-1, filed with the Securities and Exchange Commission on May
6, 1999 (Registration No. 333-64211).
5.1 Opinion of Robinson Silverman Pearce Aronsohn & Berman LLP,
counsel to the Company, as to certain legal matters in
connection with the shares of Class A Common Stock being
registered.
10.1 Form of barnesandnoble.com inc. 1999 Incentive Plan
Incorporated by Reference to Exhibit 10.1 of the Registrant's
Pre-Effective Amendment No. 3 Registration Statement on Form
S-1, filed with the Securities and Exchange Commission on
May 24, 1999 (Registration No. 333-64211).
10.2 Form of Second Amended and Restated Limited Liability
Company Agreement of barnesandnoble.com llc. Incorporated by
reference to Exhibit 10.6 of the Registrant's Pre-Effective
Amendment No. 2 Registration Statement on Form S-1, filed with
the Securities and Exchange Commission on May 6, 1999
(Registration No. 333-64211).
10.3 Form of Stockholders Agreement between Registrant and
Bertelsman AG. Incorporated by reference to Exhibit 10.7 of
the Registrant's Pre-Effective Amendment No. 2 Registration
Statement on Form S-1, filed with the Securities and Exchange
Commission on May 6, 1999 (Registration No. 333-64211).
23.1 Consent of Robinson Silverman Pearce Aronsohn & Berman LLP
(included as part of Exhibit 5.1).
23.2 Independent Auditor's Consent of BDO Seidman, LLP.
24.1 Power of Attorney (included on signature page of this
Registration Statement).
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EXHIBIT 5.1
ROBINSON SILVERMAN PEARCE ARONSOHN & BERMAN LLP
1290 Avenue of the Americas
New York, New York 10104
May 24, 1999
barnesandnoble.com inc.
76 Ninth Avenue, 11th Floor
New York, New York 10011
Re: barnesandnoble.com inc.
Registration Statement on Form S-8
Ladies and Gentlemen:
We are rendering this opinion in connection with the
registration by barnesandnoble.com inc., a Delaware corporation (the "Company"),
of 25,500,000 shares (the "Shares") of its Class A Common Stock, par value $.001
per share, under the Securities Act of 1933, as amended, pursuant to the
above-referenced Registration Statement (the "Registration Statement"). The
Shares are reserved for issuance upon the exercise of options issued under the
Company's 1999 Incentive Plan (the "Incentive Plan").
We have examined a copy of the Registration Statement, the
Incentive Plan, the Certificate of Incorporation of the Company, and all
amendments thereto, certified by the Secretary of State of Delaware, and are
familiar with the records of the Company's corporate proceedings as reflected in
its minute books.
Based on the foregoing, and upon such further investigation as
we have deemed relevant, we are of the opinion that:
(a) The Company has been duly incorporated under the laws of
the State of Delaware.
(b) The Shares, when issued in accordance with the terms of
the Incentive Plan, including payment of the applicable purchase price, will be
duly authorized, validly issued, fully paid and nonassessable.
We are members of the New York Bar, and the opinions
expressed herein are limited to questions arising under the laws of the State of
New York, the General Corporation Law of the State of Delaware and the federal
law of the United States, and we disclaim any opinion whatsoever with respect to
matters governed by the laws of any other jurisdiction.
We consent to the filing of this opinion as an exhibit to the
Registration Statement relating to the Shares and to the use of our name
wherever appearing in the Registration Statement and any amendment thereto. In
giving this consent, we do not thereby admit that we are in the category of
persons whose consent is required under Section 7 of the Act, or the Rules and
Regulations of the Commission thereunder.
Very truly yours,
/s/ ROBINSON SILVERMAN PEARCE
ARONSOHN & BERMAN LLP
ROBINSON SILVERMAN PEARCE
ARONSOHN & BERMAN LLP
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EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
barnesandnoble.com inc.
New York, New York
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement on Form S-8 of our report
dated May 25, 1999, relating to the financial statements of barnesandnoble.com
inc. appearing in the Company's Registration Statement on Form S-1.
We also consent to the reference to us under the caption "Experts" in
the Prospectus.
/s/ BDO Seidman LLP
BDO SEIDMAN, LLP
New York, New York
May 25, 1999
