<PAGE>
As filed with the Securities and Exchange Commission on March 23, 1999
Registration No. 333-______
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
AUTOWEB.COM, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 77-0412737
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
3270 JAY STREET
SANTA CLARA, CALIFORNIA 95054
(Address of Principal Executive Offices, including Zip Code)
1997 STOCK OPTION PLAN
1999 EQUITY INCENTIVE PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
1999 DIRECTORS STOCK OPTION PLAN
(Full Title of the Plans)
SAMUEL M. HEDGPETH III
VICE PRESIDENT, FINANCE AND ADMINISTRATION,
TREASURER AND CHIEF FINANCIAL OFFICER
AUTOWEB.COM, INC.
3270 JAY STREET, BUILDING 6
SANTA CLARA, CALIFORNIA 95054
(408) 554-9552
(Name, Address and Telephone Number of Agent For Service)
COPIES TO:
Laird H. Simons III, Esq.
Thomas J. Hall, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, CA 94306
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------------------
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED SHARE PRICE FEE
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.001 par value 3,750,754 (1) $ 14.00 $52,510,556(2) $ 14,598
Common Stock, $0.001 par value 2,069,145 (3) $1.2385 $ 2,562,637 $ 713
- -------------------------------------------------------------------------------------------------------------------------------
TOTAL 5,819,899 $55,073,193 $ 15,311
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Represents the aggregate of 3,200,754 shares reserved for issuance upon
exercise of stock options under Registrant's 1999 Equity Incentive Plan,
150,000 shares reserved for issuance upon exercise of stock options under
Registrant's 1999 Directors Plan and 400,000 shares available for grant
under Registrant's 1999 Employee Stock Purchase Plan.
(2) Estimated as of March 22, 1999 pursuant to Rule 457(o) solely for the
purpose of calculating the registration fee.
(3) Represents certain shares subject to options outstanding as of March 22,
1999 under Registrant's 1997 Stock Option Plan.
(4) Weighted average per share exercise price for such outstanding options
pursuant to Rule 457(h)(1).
<PAGE>
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") are incorporated herein by reference:
(a) Registrant's prospectus filed pursuant to Rule 424(b) under the
Securities Act of 1933, as amended (the "Securities Act"), which
contains audited financial statements of Registrant as of
December 31, 1997 and 1998 and for each of the years in the
three-year period ended December 31, 1998.
(b) The description of Registrant's common stock set forth under the
caption "Description of Capital Stock" on pages 54 through 56 of
the prospectus included in Registrant's registration statement on
Form S-1, File No. 333-71177, filed January 26, 1999, and any
amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment which indicates that all securities registered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed incorporated by reference herein and to be a part hereof from the date of
the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS AND LIMITATION OF
LIABILITY.
Section 145 of the Delaware General Corporation Law authorizes a court
to award, or a corporation's board of directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act.
As permitted by Section 145 of the Delaware General Corporation Law,
Registrant's Certificate of Incorporation includes a provision that eliminates
the personal liability of its directors for monetary damages for breach of
fiduciary duty as a director, except for liability:
. for any breach of the director's duty of loyalty to Registrant
or its stockholders,
. for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law;
. under Section 174 of the Delaware General Corporation Law
(regarding unlawful dividends and stock purchases); and
. for any transaction from which the director derived an
improper personal benefit.
As permitted by the Delaware General Corporation Law, Registrant's
Bylaws provide that:
. Registrant is required to indemnify its directors and officers
to the fullest extent permitted by the Delaware General
Corporation Law, subject to certain very limited exceptions;
. Registrant may indemnify its other employees and agents as set
forth in the Delaware General Corporation Law;
II-1
<PAGE>
. Registrant is required to advance expenses, as incurred, to
its directors and officers in connection with a legal
proceeding to the fullest extent permitted by the Delaware
General Corporation Law, subject to certain very limited
exceptions; and
. the rights conferred in the Bylaws are not exclusive.
Registrant has entered into Indemnity Agreements with each of its
current directors and officers to give such directors and officers additional
contractual assurances regarding the scope of the indemnification set forth in
Registrant's Certificate of Incorporation and to provide additional procedural
protections. At present, there is no pending litigation or proceeding involving
a director, officer or employee of Registrant regarding which indemnification is
sought, nor is Registrant aware of any threatened litigation that may result in
claims for indemnification.
Reference is also made to Section 7 of the Underwriting Agreement
relating to Registrant's initial public offering, effected pursuant to a
registration statement on Form S-1 (File No. 333-71177), which provides for the
indemnification of officers, directors and controlling persons of Registrant
against certain liabilities. The indemnification provision in Registrant's
Certificate of Incorporation, Bylaws and the Indemnity Agreements entered into
between Registrant and each of its directors and officers may be sufficiently
broad to permit indemnification of Registrant's directors and officers for
liabilities arising under the Securities Act.
Registrant maintains directors' and officers' liability insurance and
expects to obtain a rider to such coverage for securities matters.
See also the undertakings set out in response to Item 9.
Reference is made to the following documents regarding relevant
indemnification provisions described above and elsewhere herein:
Document
--------
1. Form of Underwriting Agreement (incorporated by reference to Exhibit
1.01 to Registrant's registration statement on Form S-1, File No. 333-
71177, declared effective March 23, 1999).
2. Form of Indemnity Agreement between Registrant and each of its
directors and executive officers (incorporated by reference to Exhibit
10.01 to Registrant's registration statement on Form S-1, File No.
333-71177, declared effective March 23, 1999).
Reference is also made to the following documents filed as exhibits to
this registration statement regarding relevant indemnification provisions
described above and elsewhere herein:
<TABLE>
<CAPTION>
EXHIBIT DOCUMENT NUMBER
---------------- ------
<S> <C>
Registrant's Certificate of Incorporation...................... 4.01
Registrant's Bylaws............................................ 4.02
Amended and Restated Rights Agreement dated October 16, 1998... 4.03
Form of Indemnity Agreement.................................... 10.01
</TABLE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
II-2
<PAGE>
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT EXHIBIT
NUMBER TITLE
------ -----
<S> <C>
4.01 Registrant's Certificate of Incorporation (incorporated by reference to Exhibit 3.01 to
Registrant's registration statement on Form S-1, File No. 333-71177, declared effective March 22,
1999 (the "Form S-1")).
4.02 Registrant's Bylaws (incorporated by reference to Exhibit 3.02 to the Form S-1).
4.03 Form of Specimen Certificate for Registrant's common stock (incorporated by reference to Exhibit
4.01 to the Form S-1).
4.04 Amended and Restated Rights Agreement dated October 16, 1998 between Registrant and certain
stockholders named therein (incorporated by reference to Exhibit 4.02 to the Form S-1).
4.05 Registrant's 1997 Stock Option Plan and related documents (incorporated by reference to Exhibit
10.20 to the Form S-1).
4.06 Registrant's 1999 Equity Incentive Plan and related documents (incorporated by reference to
Exhibit 10.21 to the Form S-1).
4.07 Registrant's 1999 Directors Stock Option Plan and related documents (incorporated by reference to
Exhibit 10.22 to the Form S-1).
4.08 Registrant's 1999 Employee Stock Purchase Plan (incorporated by reference to Exhibit 10.23 to the
Form S-1).
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of PricewaterhouseCoopers LLP, independent accountants.
24.01 Power of Attorney (see page II-5).
</TABLE>
ITEM 9. UNDERTAKINGS.
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:
(a) to include any prospectus required by Section 10(a)(3) of
the Securities Act;
(b) to reflect in the prospectus any facts 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; and
II-3
<PAGE>
(c) 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;
provided, however, that paragraphs (1)(a) and (1)(b) above do not apply if the
- -------- -------
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by Registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in the 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. ----
- ----
(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.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of 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 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.
---- ----
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of Registrant pursuant to the provisions discussed in Item 6 hereof, or
otherwise, 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 Registrant of expenses
incurred or paid by a director, officer or controlling person of 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 hereby, 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.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Santa Clara, State of California, on this 23rd day of
March, 1999.
AUTOWEB.COM, INC.
By: /s/ DEAN A. DEBIASE
--------------------------------------
Dean A. DeBiase
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints Dean A. DeBiase, Farhang Zamani, Payam
Zamani and Samuel M. Hedgpeth III, and each of them, his true and lawful
attorneys-in-fact and agents with full power of substitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this registration statement on Form S-
8, and to file the same with all exhibits thereto and all 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 his or their 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>
Signature Title Date
- ---------------------------------------- ---------------------------------------- ------------------------------
<S> <C> <C>
PRINCIPAL EXECUTIVE OFFICER:
President, Chief Executive Officer March 23, 1999
/s/ Dean A. DeBiase and Director
- ----------------------------------------
Dean A. DeBiase
PRINCIPAL FINANCIAL OFFICER AND
Principal Accounting Officer
Vice President, Finance and March 23, 1999
/s/ Samuel M. Hedgpeth III Administration, Treasurer and
- ----------------------------------------
Samuel M. Hedgpeth III Chief Financial Officer
ADDITIONAL DIRECTORS
/s/ Mark N. Diker Director March 23, 1999
- ----------------------------------------
Mark N. Diker
Director March __, 1999
- ----------------------------------------
Jay C. Hoag
Director March __, 1999
- ----------------------------------------
Mark R. Ross
Director March __, 1999
- ----------------------------------------
Peter S. Sealey
/s/ Farhang Zamani Director March 23, 1999
- ----------------------------------------
Farhang Zamani
/s/ Payam Zamani Director March 23, 1999
- ----------------------------------------
Payam Zamani
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
-------------
EXHIBIT EXHIBIT
NUMBER TITLE
- ------ -----
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of PricewaterhouseCoopers LLP, independent accountants.
24.01 Power of Attorney (see page II-5).
<PAGE>
EXHIBIT 5.01
------------
March 22, 1999
Autoweb.com, Inc.
3270 Jay Street, Building #6
Santa Clara, California 95054
Gentlemen/Ladies:
At your request, we have examined the Registration Statement on Form S-8 to
be filed by you with the Securities and Exchange Commission (the "SEC") on or
about March 23, 1999 (the "Registration Statement") in connection with the
registration under the Securities Act of 1933, as amended, of an aggregate of
5,819,899 shares of your common stock (the "Stock") subject to issuance by you
upon the exercise of: (1) options to purchase 2,069,145 shares of Stock
granted under your 1997 Stock Option Plan (the "1997 Option Plan"); (2)
options to purchase 3,200,704 shares of Stock granted or to be granted by you
under your 1999 Equity Incentive Plan (the "1999 Option Plan"); (3) options to
purchase 150,000 shares of Stock granted or to be granted by you under your
1999 Directors Plan (the "1999 Directors Plan"); and (4) purchase rights for
up to 400,000 shares of Stock granted or to be granted by you under your 1999
Employee Stock Purchase Plan (the "1999 Purchase Plan"). The plans referred to
in clauses (1), (2), (3) and (4) above are collectively referred to in this
letter as the "Plans."
In rendering this opinion, we have examined the following:
(1) your registration statement on Form S-1 (File No. 333-71177), declared
effective by the SEC on March 23, 1999, together with the exhibits
filed therewith, including without limitation each of the Plans and
related stock option grant and exercise agreements and stock option
agreements;
(2) your registration statement on Form 8-A (File No. 000-25577), filed
with the SEC on March 17, 1999 and declared effective on March 23,
1999;
(3) the Registration Statement, together with the exhibits filed as a part
thereof;
(4) the minutes of meetings and actions by written consent of the
stockholders and Board of Directors that are contained in your
minute books and in the minute books of your predecessor,
Autoweb.com, a California corporation ("Autoweb.com California")
that are in our possession;
(5) your Certificate of Incorporation, as amended (the "Certificate of
Incorporation"), and Bylaws (the "Bylaws"), both of which were filed
as exhibits to your registration statement on Form S-1 filed with
the SEC on January 26, 1999 (File No. 333-71177), as such
registration statement was subsequently amended, and the Articles of
Incorporation and Bylaws of Autoweb.com California;
<PAGE>
Autoweb.com, Inc.
Page 2
(6) the stock records for both you and Autoweb.com California that you
have provided to us (consisting of a list of stockholders dated
January 12, 1999 and a list of option holders as of December 31, 1998
respecting your capital and of any rights to purchase capital stock,
each of which was prepared by Gray Cary Ware & Friedenrich, your
former counsel, and each of which you have represented to us are true
and complete as of their dates and which we have updated based upon
information provided by you);
(7) a Management Certificate executed by you, addressed to us and dated of
even date herewith, which contains certain factual and other
representations (the "Management Certificate").
By telephone call to the offices of the SEC, we have also confirmed both
the continued effectiveness of the Company's registration under the Securities
Exchange Act of 1934, as amended and your eligibility to use Form S-8.
In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to, the genuineness of all signatures on
original documents, the authenticity and completeness of all documents submitted
to us as originals, the conformity to originals and completeness of all
documents submitted to us as copies, the legal capacity of all natural persons
executing the same, the lack of any undisclosed termination, modification,
waiver or amendment to any document reviewed by us and the due authorization,
execution and delivery of all documents where due authorization, execution and
delivery are prerequisites to the effectiveness thereof.
As to matters of fact relevant to this opinion, we have relied solely upon
our examination of the documents referred to above and have assumed the current
accuracy and completeness of the information obtained from public officials and
records referred to above. We have made no independent investigation or other
attempt to verify the accuracy of any of such information or to determine the
existence or non-existence of any other factual matters; however, we are not
-------
aware of any facts that would cause us to believe that the opinion expressed
herein is not accurate.
We are admitted to practice law in the State of California, and we express
no opinion herein with respect to the application or effect of the laws of any
jurisdiction other than the existing laws of the United States of America and
the State of California and (without reference to case law or secondary sources)
the existing Delaware General Corporation Law.
In connection with our opinion expressed below, we have assumed that, at or
prior to the time of the delivery of any shares of Stock, the Registration
Statement will have been declared effective under the Securities Act of 1933, as
amended, that the registration will apply to such shares of Stock and will not
have been modified or rescinded and that there will not have occurred any change
in law affecting the validity or enforceability of such shares of Stock.
Based upon the foregoing, it is our opinion that the 5,819,899 shares of
Stock that may be
<PAGE>
Autoweb.com, Inc.
Page 3
issued and sold by you upon the exercise of: (1) stock options granted under
the 1997 Option Plan; (2) stock options granted or to be granted under the
1999 Option Plan; (3) stock options granted or to be granted under the 1999
Directors Plan; and (4) purchase rights granted or to be granted under the
1999 Purchase Plan, when issued and sold in accordance with the Registration
Statement and the applicable Plan and stock option grant and exercise
agreements or stock purchase agreements entered into or to be entered into
thereunder, and in the manner referred to in the relevant prospectus
associated with the Registration Statement, will be validly issued, fully paid
and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us, if any, in the
Registration Statement, the prospectus constituting a part thereof and any
amendments thereto.
This opinion speaks only as of its date and we assume no obligation to
update this opinion should circumstances change after the date hereof. This
opinion is intended solely for the your use as an exhibit to the Registration
Statement for the purpose of the above sale of the Stock and is not to be relied
upon for any other purpose.
Very truly yours,
FENWICK & WEST LLP
By: /s/ LAIRD H. SIMONS III, ESQ.
-----------------------------
Laird H. Simons III, Esq., a Partner
<PAGE>
Exhibit 23.02
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Autoweb.com, Inc. on Form S-8 of our report dated January 25, 1999, except for
Note 13 for which the date is March 17, 1999, on our audits of the financial
statements and financial statement schedules of Autoweb.com, Inc. as of
December 31, 1997 and 1998, and for the years ended December 31, 1996, 1997,
and 1998, which report is included on Form S-1 dated March 22, 1999 as filed
with the Securities and Exchange Commission pursuant to the Securities Act of
1933.
/s/ PricewaterhouseCoopers LLP
San Jose, California
March 23, 1999
