<PAGE> 1
As filed with the Securities and Exchange Commission on March 7, 2000
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EGREETINGS NETWORK, INC.
(Exact name of registrant as specified in its charter)
Delaware 94-3207092
(State of Incorporation) (I.R.S. Employer Identification No.)
149 New Montgomery Street
San Francisco, CA 94105
(Address of principal executive offices)
1996 Stock Option Plan
1999 Equity Incentive Plan
1999 Non-Employee Directors' Stock Option Plan
1999 Employee Stock Purchase Plan
(Full title of the plans)
Gordon M. Tucker
Chief Executive Officer and Director
149 New Montgomery Street
San Francisco, CA 94105
(415) 375-4100
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
Kenneth L. Guernsey, Esq.
Karyn S. Tucker, Esq.
Edward A. Kleinhans, Esq.
Cooley Godward LLP
One Maritime Plaza, 20th Floor
San Francisco, CA 94111
(415) 693-2000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Offering Aggregate Amount of
to be Registered Amount to be Registered Price per Share (1) Offering Price (1) Registration Fee
- ------------------------ ---------------------------- -------------------------- ---------------------------- ----------------------
<S> <C> <C> <C> <C>
Common Stock, par value 23,067,371 shares $2.90 - $6.49 $110,235,915.90 $29,102.28
$.0001 per share
====================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee. The offering price per share and aggregate offering price are
based upon (a) the weighted average exercise price for shares subject to options
previously (i) granted under the Egreetings Network, Inc. (the "Company" or the
"Registrant") 1996 Stock Option Plan, pursuant to Rule 457(h) under the
Securities Act of 1933, as amended (the "Act"), (ii) granted under the 1999
Equity Incentive Plan, pursuant to Rule 457(h) under the Securities Act of 1933,
as amended (the "Act") and (b) the average of the high and low prices of the
Company's Common Stock as reported on the Nasdaq National Market on March 6,
2000 for shares available for grant pursuant to the 1999 Equity Incentive Plan,
the 1999 Non-Employee Directors' Stock Option Plan and the 1999 Employee Stock
Purchase Plan (collectively, the "Plans"), pursuant to Rule 457(c) under the
Act.
<PAGE> 2
The chart below details the calculation of the registration fee:
<TABLE>
<CAPTION>
===============================================================================================================================
Maximum Maximum
Title of Securities to be Amount to be Offering Price Per Aggregate Offering Price Amount of Registration
Registered Registered Share (1) (1) Fee
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Shares of Common Stock 2,567,371 $2.90(1)(a) $7,445,375.90
issuable pursuant to
outstanding options under
the 1996 Stock Option Plan
===============================================================================================================================
Shares of Common Stock 595,750 6.49(1)(a) $3,866,417.50
issuable pursuant to
outstanding options under
the 1999 Equity Incentive
Plan
===============================================================================================================================
Shares of Common Stock 14,408,250 $4.97(1)(b) $71,589,122.50
reserved for future grant
under the 1999 Equity
Incentive Plan
===============================================================================================================================
Shares of Common Stock 500,000 $4.97(1)(b) $2,485,000
reserved for future grant
under the 1999
Non-Employee Directors
Stock Option Plan
===============================================================================================================================
Shares of Common Stock 5,000,000 $4.97(1)(b) $24,850,000
reserved for future
issuance under the 1999
Employee Stock Purchase
Plan
==============================================================================================================================
Totals 23,067,371 $110,235,915.90 $29,102.28
========== =============== ===========
==============================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee. The offering price per share and aggregate offering price are
based upon (a) the weighted average exercise price for shares subject to options
previously (i) granted under the Egreetings Network, Inc. (the "Company" or the
"Registrant") 1996 Stock Option Plan, pursuant to Rule 457(h) under the
Securities Act of 1933, as amended (the "Act"), (ii) granted under the 1999
Equity Incentive Plan, pursuant to Rule 457(h) under the Securities Act of 1933,
as amended (the "Act"), and (b) the average of the high and low prices of the
Company's Common Stock as reported on the Nasdaq National Market on March 6,
2000 for shares available for grant pursuant to the 1999 Equity Incentive Plan,
the 1999 Non-Employee Directors' Stock Option Plan and the 1999 Employee Stock
Purchase Plan (collectively, the "Plans"), pursuant to Rule 457(c) under the
Act.
<PAGE> 3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Egreetings Network, Inc. with the
Securities and Exchange Commission are incorporated by reference into this
Registration Statement:
(a) We filed our prospectus pursuant to Rule 424(b) under the
Securities Act of 1933, as amended (the "Act"), on December 16, 1999, that
contains audited financial statements for our latest fiscal year for which such
statements have been filed.
(b) The description of our Common Stock which is contained in the
registration statement on Form S-1 filed December 16, 1999 (No. 333-88595),
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
including any amendment or report filed for the purpose of updating such
description.
All reports and other documents subsequently filed by us 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 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 of this registration
statement from the date of the filing of such reports and documents.
INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the Common Stock offered hereby will be passed upon for
us by Cooley Godward LLP, San Francisco, California.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Our certificate of incorporation contains provisions permitted under
Delaware law relating to the liability of directors. These provisions eliminate
a director's personal liability for monetary damages resulting from a breach of
fiduciary duty, except in circumstances involving wrongful acts, such as:
- any breach of the director's duty of loyalty;
- acts or omissions which involve a lack of good faith, intentional
misconduct or a knowing violation of the law;
- payment of dividends or approval of stock repurchases or redemptions
that are unlawful under Delaware law; or
- any transaction from which the director derives an improper personal
benefit.
These provisions do not limit or eliminate our rights or any
stockholder's rights to seek non-monetary relief, such as an injunction or
rescission, in the event of a breach of director's fiduciary duty. These
provisions will not alter a director's liability under federal securities laws.
Our bylaws require us to indemnify our directors and executive officers
to the fullest extent not prohibited by the Delaware law. We may limit the
extent of such indemnification by individual contracts with our directors and
executive officers. Further, we may decline to indemnify any director or
executive officer in connection with any proceeding initiated by such person or
any proceeding by such person against us or our directors, officers, employees
or other agents, unless such indemnification is expressly required to be made by
law or the proceeding was authorized by our board of directors.
We entered into indemnity agreements with each of our current directors
and certain of our executive officers to give such directors and officers
additional contractual assurances regarding the scope of the indemnification set
forth in our certificate of incorporation and bylaws and to provide additional
procedural protections. At present, there is no pending litigation or proceeding
involving any of our directors, officers or employees for which indemnification
is sought, nor are we aware of any threatened litigation that may result in
claims for indemnification.
1.
<PAGE> 4
We have the power to indemnify our other officers, employees and other
agents, as permitted by Delaware law, but we are not required to do so. We have
obtained directors' and officers' liability insurance.
EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
CONSULTANTS AND ADVISORS
Not applicable.
2.
<PAGE> 5
EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number
- -------
<S> <C>
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Ernst & Young LLP, Independent Accountants
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to
this Registration Statement
24.1 Power of Attorney is contained on the signature pages
99.1 1996 Stock Option Plan and forms of grant thereunder(1)
99.2 1999 Equity Incentive Plan and forms of grant thereunder(2)
99.3 1999 Non-Employee Directors' Stock Option Plan and forms of
grant thereunder(3)
99.4 1999 Employee Stock Purchase Plan and form of offering
thereunder (4)
</TABLE>
(1) Filed as an exhibit to the Form S-1 Registration Statement (Registration
No. 333-88595) on October 7, 1999 and November 16, 1999, and incorporated
herein by reference.
(2) Filed as an exhibit to the Form S-1 Registration Statement (Registration
No. 333-88595) on October 7, 1999 and November 16, 1999, and incorporated
herein by reference.
(3) Filed as an exhibit to the Form S-1 Registration Statement (Registration
No. 333-88595) on October 7, 1999 and November 16, 1999, and incorporated
herein by reference.
(4) Filed as an exhibit to the Form S-1 Registration Statement (Registration
No. 333-88595) on October 7, 1999 and November 16, 1999, and incorporated
herein by reference.
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 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. 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 of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) (ss. 230.424(b) of this
chapter) if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration statement;
3.
<PAGE> 6
(iii) 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 (a)(i) and (a)(ii) do 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 issuer pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by
reference herein.
(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 herein, 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 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 the Registration Statement shall be deemed to
be a new registration statement relating to the securities offered herein,
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 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 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.
4.
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 San Francisco, State of California, on
March 7, 2000.
EGREETINGS, INC.
By: /s/ Gordon M. Tucker
---------------------------------------------
Gordon M. Tucker
Chief Executive Officer and Director
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Gordon Tucker and Andrew Moley, 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 post-effective amendments)
to this Registration 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 connection therewith, as fully to all
intent 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 substitutes or substitute, 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/ Gordon M. Tucker
- -------------------------------------------- Chief Executive Officer and February 29, 2000
GORDON M. TUCKER Director (Principal Executive
Officer)
/s/ Andrew J. Moley
- -------------------------------------------- Senior Vice President and Chief February 29, 2000
ANDREW J. MOLEY Financial Officer (Principal
Financial and Accounting Officer)
/s/ Stewart Alsop
- -------------------------------------------- Director February 29, 2000
STEWART ALSOP
- -------------------------------------------- Director February 29, 2000
CHARLES A. HOLLOWAY
/s/ Brendan S. Kim
- -------------------------------------------- Director February 29, 2000
BRENDAN S. KIM
</TABLE>
5.
<PAGE> 8
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Peter Nieh
- -------------------------------------------- Director February 29, 2000
PETER NIEH
/s/ Frank J. O'Connell
- -------------------------------------------- Director February 29, 2000
FRANK J. O'CONNELL
/s/ Lee Rosenberg
- -------------------------------------------- Director February 29, 2000
LEE ROSENBERG
</TABLE>
6.
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
<S> <C>
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Ernst & Young LLP, Independent Accountants
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to
this Registration Statement
24.1 Power of Attorney is contained on the signature pages.
99.1 1996 Stock Option Plan and forms of grant thereunder(1)
99.2 1999 Equity Incentive Plan and forms of grant thereunder(2)
99.3 1999 Non-Employee Directors' Stock Option Plan and forms of
grant thereunder(3)
99.4 1999 Employee Stock Purchase Plan and form of offering
thereunder(4)
</TABLE>
(1) Filed as an exhibit to the Form S-1 Registration Statement (Registration
No. 333-88595) on October 7, 1999 and November 16, 1999, and incorporated
herein by reference.
(2) Filed as an exhibit to the Form S-1 Registration Statement (Registration
No. 333-88595) on October 7, 1999 and November 16, 1999, and incorporated
herein by reference.
(3) Filed as an exhibit to the Form S-1 Registration Statement (Registration
No. 333-88595) on October 7, 1999 and November 16, 1999, and incorporated
herein by reference.
(4) Filed as an exhibit to the Form S-1 Registration Statement (Registration
No. 333-88595) on October 7, 1999 and November 16, 1999, and incorporated
herein by reference.
7.
<PAGE> 1
Exhibit 5.1
March 7, 2000
Egreetings Network, Inc.
149 New Montgomery Street
San Francisco, CA 94105
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Egreetings Network, Inc. (the "Company") of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission covering the offering of up to an aggregate of 23,067,371
shares of the Company's Common Stock, $.001 par value, (the "Shares"), with
respect to (a) 2,567,371 of the Shares issuable for issuance pursuant to its
1996 Stock Option Plan, 595,750 of the Shares issuable for issuance pursuant to
its 1999 Equity Incentive Plan, 14,404,250 of the Shares issuable or reserved
for issuance pursuant to its 1999 Equity Incentive Plan, 500,000 of the Shares
issuable or reserved for issuance pursuant to its 1999 Non-Employee Directors'
Stock Option Plan and 5,000,000 of the Shares issuable or reserved for issuance
pursuant to its 1999 Employee Stock Purchase Plan (collectively, the "Plans").
In connection with this opinion, we have examined the Registration Statement and
related Prospectus, your Certificate of Incorporation and Bylaws, as amended,
and such other documents, records, certificates, memoranda and other instruments
as we deem necessary as a basis for this opinion. We have assumed the
genuineness and authenticity of all documents submitted to us as originals, the
conformity to originals of all documents submitted to us as copies thereof, and
the due execution and delivery of all documents where due execution and delivery
are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Plans, the
Registration Statement and related Prospectus, will be validly issued, fully
paid, and nonassessable (except as to shares issued pursuant to certain
deferred payment arrangements, which will be fully paid and nonassessable when
such deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
COOLEY GODWARD LLP
By:/s/ Kenneth L. Guernsey
-------------------------------
Kenneth L. Guernsey
KLG:eak
<PAGE> 1
Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated November 22, 1999 with respect to
the financial statements of Egreetings Network, Inc. included in its
Form S-1/A (No. 333-88595) as filed December 16, 1999 with Securities and
Exchange Commission.
/s/ Ernst & Young LLP
- -------------------------------
Ernst & Young LLP
Walnut Creek, California
March 3, 2000
