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As filed with the Securities and Exchange Commission on June 10, 1999
Registration No. 333-___
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
-------------------
NEXTCARD, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction 68-0384-606
of incorporation or organization) (I.R.S. Employer
Identification No.)
595 Market Street, Suite 1800, San Francisco, California 94105
(Address of Principal Executive Offices) (Zip Code)
1997 Stock Plan
1999 Employee Stock Purchase Plan
(Full title of the plans)
Jeremy R. Lent, Chief Executive Officer
NextCard, Inc.
595 Market Street, Suite 1800
San Francisco, California 94105
(415) 836-9700
(Name and address, including zip code, and
telephone number, including area code, of agent for service)
Calculation of Registration Fee
<TABLE>
<CAPTION>
=========================================================================================
Proposed
Proposed Maximum Amount of
Title of Securities Amount to be Maximum Aggregate Registration
to be Registered Registered Offering Price Offering Price Fee
- -----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
par value $.001
per share 3,279,889(1) $33.06(2) $108,411,130(2) $30,138.30
- -----------------------------------------------------------------------------------------
Common Stock
par value $.001
per share 10,344,258(3) $1.19(4) $12,309,667 $3,422.08
- -----------------------------------------------------------------------------------------
Total 13,624,147 $120,720,797 $33,560.38
=========================================================================================
</TABLE>
(1) Shares available for grant as of June 9, 1999 under the 1997
Stock Plan and available for issuance under the 1999 Employee Stock Purchase
Plan.
(2) Estimated solely for the purpose of computing the
registration fee pursuant to Rule 457(c), on the basis of the average of the
high and low price of NextCard's common stock as reported on the Nasdaq National
Market on June 7, 1999.
(3) Shares subject to outstanding options as of June 9, 1999
under the 1997 Stock Plan.
(4) Weighted average exercise price for such outstanding options
pursuant to Rule 457(h)(1).
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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 are incorporated herein by reference:
(a) NextCard's prospectus filed pursuant to Rule 424(b) under the
Securities Act of 1933, as amended, that contains audited financial statements
of NextCard and its subsidiary for the period from June 6, 1996 (inception) to
December 31, 1997 and the year ended December 31, 1998; and
(b) The description of NextCard's common stock contained in
NextCard's Registration Statement on Form 8-A filed under Section 12(g) of the
Securities Exchange Act of 1934, as amended, including any amendment or report
filed for the purpose of updating such description.
All documents subsequently filed by the NextCard pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, 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 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.
As permitted by the Delaware General Corporation Law, our Amended
and Restated Certificate of Incorporation provides that no director will be
personally liable to us or our stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability:
o for any breach of the director's duty of loyalty to us or our
stockholders;
o for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
o under Section 174 of the Delaware General Corporation Law; and
2
<PAGE> 3
o for any transaction from which the director derived an improper personal
benefit.
Our Amended and Restated Bylaws further provide that we must
indemnify our directors and executive officers and may indemnify our other
officers and employees and agents to the fullest extent permitted by Delaware
law. We currently maintain liability insurance for our officers and directors.
We have entered into indemnification agreements with each of our
directors and officers. These agreements require us, among other things, to
indemnify such directors and officers for certain expenses (including attorneys'
fees), judgments, fines, penalties and settlement amounts incurred by any such
person in any threatened, pending or completed action, suit, proceeding or
alternative dispute resolution mechanism by reason of any event or occurrence
arising out of such person's services as a director or officer. In addition, our
board of directors has approved a proposal to purchase up to $25 million in
directors' and officers' liability insurance coverage.
There is no pending litigation or proceeding involving any of our
directors, officers, employees or agents as to which indemnification is being
sought. We are not aware of any pending or threatened litigation or proceeding
that might result in a claim for such indemnification.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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<CAPTION>
Exhibit
Number Description of Document
- ------- -----------------------
<S> <C>
4.1 Amended and Restated Certificate of Incorporation (incorporated
by reference to exhibit number 3.1 to NextCard's Registration
Statement on Form S-1, Registration No. 333-74755).
4.2 Amended and Restated Bylaws (incorporated by reference to exhibit
number 3.1 to NextCard's Registration Statement on Form S-1,
Registration No. 333-74755).
4.3 1997 Stock Plan and form of Option Agreement under 1997 Stock
Plan (incorporated by reference to exhibit number 10.7 to
NextCard's Registration Statement on Form S-1, Registration No.
333-74755).
4.4 1999 Employee Stock Purchase Plan (incorporated by reference to
exhibit number 10.27 to NextCard's Registration Statement on Form
S-1, Registration No. 333-74755).
5.1 Opinion of Robert Linderman, Esq., General Counsel & Secretary of
NextCard, Inc.
</TABLE>
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<TABLE>
<S> <C>
24.1 Consent of Ernst & Young LLP.
24.2 Consent of Robert Linderman, Esq., General Counsel & Secretary of
NextCard, Inc. (included in Exhibit 5.1).
24.3 Powers of Attorney (incorporated by reference to exhibit number
24.1 to NextCard's Registration Statement on Form S-1,
Registration No. 333-74755).
</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 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, 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.
The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Act of 1934) 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.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Securities and
Exchange Commission such indemnification is against public policy as expressed
in the 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 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, NextCard
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 San Francisco, State of California, on June 9, 1999.
NEXTCARD, INC.
By /s/ JEREMY R. LENT
-------------------------------------
Jeremy R. Lent
Chairman of the Board,
Chief Executive Officer and President
Pursuant to the requirements of the Securities Act, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ JEREMY R. LENT
- ---------------------------- Chairman of the Board, Chief June 9, 1999
Jeremy R. Lent Executive Officer, President and
Director (Principal Executive
Officer)
/s/ JOHN V. HASHMAN
- ---------------------------- Chief Financial Officer June 9, 1999
John V. Hashman (Principal Financial and
Accounting Officer)
JEFFREY D. BRODY* Director June 9, 1999
- ----------------------------
Jeffrey D. Brody
June 9, 1999
ALAN N. COLNER* Director
- ----------------------------
Alan N. Colner
TOD H. FRANCIS* Director June 9, 1999
- ----------------------------
Tod H. Francis
SAFI U. QURESHEY* Director June 9, 1999
- ----------------------------
Safi U. Qureshey
BRUCE G. RIGIONE* Director June 9, 1999
- ----------------------------
Bruce G. Rigione
*By /s/ John V. Hashman,
------------------------
Attorney in Fact
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
- ------- -----------------------
<S> <C>
4.1 Amended and Restated Certificate of Incorporation (incorporated
by reference to exhibit number 3.1 to NextCard's Registration
Statement on Form S-1, Registration No. 333-74755).
4.2 Amended and Restated Bylaws (incorporated by reference to exhibit
number 3.1 to NextCard's Registration Statement on Form S-1,
Registration No. 333-74755).
4.3 1997 Stock Plan and form of Option Agreement under 1997 Stock
Plan (incorporated by reference to exhibit number 10.7 to
NextCard's Registration Statement on Form S-1, Registration No.
333-74755).
4.4 1999 Employee Stock Purchase Plan (incorporated by reference to
exhibit number 10.27 to NextCard's Registration Statement on Form
S-1, Registration No. 333-74755).
5.1 Opinion of Robert Linderman, Esq., General Counsel & Secretary of
NextCard, Inc.
24.1 Consent of Ernst & Young LLP.
24.2 Consent of Robert Linderman, Esq., General Counsel & Secretary of
NextCard, Inc. (included in Exhibit 5.1).
24.3 Powers of Attorney (incorporated by reference to exhibit number
24.1 to NextCard's Registration Statement on Form S-1,
Registration No. 333-74755).
</TABLE>
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EXHIBIT 5.1
[NEXTCARD LETTERHEAD]
June 8, 1999
NextCard, Inc.
595 Market Street - Suite 1800
San Francisco, CA 94105
Re: Proposed Offering of up to 13,624,147 Shares of Common Stock
Pursuant to the NextCard, Inc. 1997 Stock Plan and the NextCard,
Inc. Employee Stock Purchase Plan
Ladies and Gentlemen:
I am the duly appointed and acting General Counsel and Secretary of NextCard,
Inc., a Delaware corporation (the "Company"). This opinion is being rendered in
connection with the proposed offering of up to 13,624,147 shares of Common Stock
(the "Shares") to be issued pursuant to the NextCard, Inc. 1997 Stock Plan and
the NextCard, Inc. Employee Stock Purchase Plan (collectively the "Plans"). The
Shares are the subject of a registration Statement on Form S-8 (the
"Registration Statement") to be filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Act").
In my capacity as counsel and for the purposes of this opinion, I have examined
originals or copies, certified or otherwise identified to my satisfaction, of
the Company's Amended and Restated Certificate of Incorporation, By-laws,
resolutions of the Company's Board of Directors and such other documents and
corporate records as I have deemed necessary or appropriate for the giving of
this opinion.
Based upon my examination, I am of the opinion that the Shares have been validly
authorized for issuance and, when issued and sold in accordance with the terms
set forth in the Registration Statement and the Plans, and, when (a) the
Registration Statement has become effective under the Act, (b) the pertinent
provisions of any applicable state securities law have been complied with and
(c) in the case of options issued under the Plans, the Shares have been paid
for, the Shares so issued will be legally issued and will be fully paid and
nonassessable.
I hereby consent to the filing of this opinion as an Exhibit to the Registration
Statement. In giving this consent, I do not admit that I am within the category
of persons whose consent is required under Section 7 of the Act or the General
Rules and Regulations of the Commission.
Very truly yours,
/s/ Robert Linderman
Robert Linderman
General Counsel & Secretary
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Exhibit 24.1
Consent Of Independent Auditors
We consent to the incorporation by reference of our report dated February 5,
1999, except as to Note 4 and Note 11, as to which the date is May 13, 1999,
with respect to the consolidated financial statement of NextCard, Inc. and
subsidiary included in its Prospectus filed pursuant to Rule 424(b) under the
Securities Act of 1933, as amended, for the year ended December 31, in the
Registration Statement (Form S-8 No. 333-00000) pertaining to the 1997 Stock
Plan and 1999 Employee Stock Purchase plan of NextCard, Inc., filed with the
Securities and Exchange Commission on or about June 8, 1999.
/s/ Ernst & Young LLP
San Francisco, California
June 8, 1999
