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As filed with the Securities and Exchange Commission on June 22, 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
FTD.COM INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 36-4294509
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
3113 WOODCREEK DRIVE
DOWNERS GROVE, ILLINOIS 60515
(Address, Including Zip Code, of Principal Executive Offices)
1999 EQUITY INCENTIVE PLAN
(Full Title of the Plan)
Michael J. Soenen
President and Chief Executive Officer
FTD.COM INC.
3113 Woodcreek Drive
Downers Grove, Illinois 60515
(Name and Address of Agent for Service)
(630) 724-6200
(Telephone Number, Including Area Code, of Agent For Service)
With a copy to:
Timothy J. Melton
Jones, Day, Reavis & Pogue
77 West Wacker Drive
Chicago, Illinois 60601
(312) 782-3939
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title Of Securities To Be Amount To Be Offering Price Aggregate Amount of
Registered Registered(1) Per Share(2) Offering Price (2) Registration Fee
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<S> <C> <C> <C> <C>
Class A common stock,
par value $.01 per share 4,500,000 shares $2.1094 $9,492,300 $2,505.97
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(1) Pursuant to 416, there are also being registered such additional shares
of Class A common stock as may be issuable pursuant to the
anti-dilution provision of the FTD.COM INC. 1999 Equity Incentive Plan.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee, pursuant to paragraphs (c) and (h) of Rule 457 under
the Securities Act, on the basis of the average of high and low sale
prices of the shares of Class A common stock, par value $.01 per share,
of the Company (the "Common Stock"), on the Nasdaq National Market on
June 21, 2000.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in
accordance with Rule 428 under the Securities Act of 1933 and the
Note to Part I of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents that have been filed by FTD.COM INC. (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated herein by reference:
(1) Our Registration Statement on Form S-1, as amended
(File No. 333-78857) (the "S-1");
(2) Our prospectus filed with the Commission on September 29,
1999 pursuant to Rule 424(b) under the Securities Act of 1933,
as amended, in connection with the S-1 in which there is set
forth the audited financial statements for our fiscal year
ended June 30, 1999;
(3) Our Quarterly Reports on Form 10-Q for the quarters ended
September 30, 1999 (filed with the Commission on November 2,
1999), December 31, 1999 (filed with the Commission on
February 1, 2000) and March 31, 2000 (filed with the
Commission on April 27, 2000); and
(4) The description of the Common Stock contained in our
Registration Statement on Form 8-A filed with the Commission
on July 21, 1999 (File No. 000-26779).
All documents that shall be filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934
(the "Exchange Act") subsequent to the filing of this registration statement
and prior to the filing of a post-effective amendment indicating that all
securities offered have been sold or deregistering all securities then
remaining unsold thereunder shall be deemed to be incorporated herein by
reference and shall be deemed to be a part hereof from the date of filing
thereof.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superceded
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 supercedes such
statement. Any such statement so modified or superceded shall not be deemed,
except as so modified or superceded, to constitute a part of this
Registration Statement.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable. (The Common Stock is registered under Section 12 of
the Exchange Act.)
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102 of the Delaware General Corporation Law, as amended
("DGCL"), allows a corporation to eliminate the personal liability of
directors of a corporation to the corporation or its stockholders for
monetary damages for a breach of fiduciary duty as a director, except where
the director breached his duty of loyalty, failed to act in good faith,
engaged in intentional misconduct or knowingly violated a law, authorized the
payment of a dividend or approved a stock repurchase in violation of the DGCL
or obtained an improper personal benefit.
Section 145 of the DGCL provides, among other things, that the
Company may indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or
proceeding (other than an action by or in the right of the Company) by reason
of the fact that the person is or was a director, officer, agent or employee
of the Company or is or was serving at the Company's request as a director,
officer, agent, or employee of another corporation, partnership, joint
venture, trust or other enterprise, against expenses, including attorneys'
fees, judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding.
The power to indemnify applies (a) if such person is successful on the merits
or otherwise in defense of any action, suit or proceeding, or (b) if such
person acted in good faith and in a manner he or she reasonably believed to
be in the best interest, or not opposed to the best interest, of the Company,
and with respect to any criminal action or proceeding, had no reasonable
cause to believe his or her conduct was unlawful. The power to indemnify
applies to actions brought by or in the right of the Company as well, but
only to the extent of defense expenses (including attorneys' fees but
excluding amounts paid in settlement) actually and reasonably incurred and
not to any satisfaction of judgment or settlement of the claim itself, and
with the further limitation that in such actions no indemnification shall be
made in the event of any adjudication of negligence or misconduct in the
performance of his or her duties to the Company, unless the court believes
that in the light of all the circumstances indemnification should apply.
Section 174 of the DGCL provides, among other things, that a
director, who willfully or negligently approves of an unlawful payment of
dividends or an unlawful stock purchase or redemption, may be held liable for
such actions. A director who was either absent when the unlawful actions were
approved or dissented at the time may avoid liability by causing his or her
dissent to such actions to be entered in the books containing the minutes of
the meetings of the board of directors at the time such action occurred or
immediately after such absent director receives notice of the unlawful acts.
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Our Certificate of Incorporation, as amended, includes a provision
that eliminates the personal liability of our 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 the
Company 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 DGCL regarding unlawful dividends
and stock purchases; or
- for any transaction from which the director derived an
improper personal benefit.
These provisions are permitted under Delaware law.
Our Bylaws provide that:
- we must indemnify our directors and officers to the fullest
extent permitted by Delaware law;
- we may indemnify our other employees and agents to the same
extent that we indemnified our officers and directors, unless
otherwise determined by our Board of Directors; and
- we must advance expenses, as incurred, to our directors and
executive officers in connection with a legal proceeding to
the fullest extent permitted by Delaware Law.
The indemnification provisions contained in our Certificate of
Incorporation, as amended, and Bylaws are not exclusive of any other rights
to which a person may be entitled by law, agreement, vote of stockholders or
disinterested directors or otherwise. In addition, the Company maintains
insurance on behalf of its directors and executive officers insuring them
against any liability asserted against them in their capacities as directors
or officers or arising out of such status.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Certificate of Incorporation of FTD.COM (incorporated by
reference to Exhibit 3.1 to the S-1).
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4.2 Certificate of Amendment to Certificate of Incorporation of
FTD.COM relating to Series A 8% Cumulative Redeemable
Convertible Preferred Stock (incorporated by reference to
Exhibit 3.2 to the S-1).
4.3 Bylaws of the Company (incorporated by reference to Exhibit 3.3
to the S-1).
4.4 FTD.COM INC. 1999 Equity Incentive Plan.
4.5 Form of Non-Qualified Stock Option Agreement.
4.6 Form of Director Non-Qualified Stock Option Agreement.
4.7 Form of Restricted Shares Agreement.
5.1 Opinion of Jones, Day, Reavis & Pogue as to the validity
of the securities registered hereunder.
23.1 Consent of Jones, Day, Reavis & Pogue (set forth in their
opinion filed as Exhibit 5.1 to this Registration Statement).
23.2 Consent of KPMG LLP.
24.1 Powers of Attorney.
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:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(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) if, in
the aggregate, the changes in volume and price represent no more
than 20 percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement;
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(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)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8, and 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
the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference 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.
(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 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 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 Exchange 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.
(c) 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 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 form
S-8 Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Downers Grove State of Illinois, on
this 21st day of June 2000.
FTD.COM INC.
By: /s/ MICHAEL J. SOENEN
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Michael J. Soenen
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Form S-8 Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
SIGNATURE TITLE DATE
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/s/MICHAEL J. SOENEN President, Chief Executive June 21, 2000
------------------------------- Officer and Director
Michael J. Soenen (Principal Executive Officer
and Principal Financial Officer)
* Chairman of the Board and June 21, 2000
------------------------------- Director
Richard C. Perry
* Director June 21, 2000
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Habib Y. Gorgi
* Director June 21, 2000
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Samuel I. Hill
* Director June 21, 2000
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Veronica K. Ho
* Director June 21, 2000
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Richard M. Owen
* Director June 21, 2000
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Gary K. Silberberg
* The undersigned by signing his name hereunto has hereby signed this Form
S-8 Registration Statement on behalf of the above-named directors, on June
21, 2000, pursuant to a power of attorney executed on behalf of each such
director and filed with the Securities and Exchange Commission as Exhibit
24.1 hereto.
By: /s/ MICHAEL J. SOENEN
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Michael J. Soenen
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EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
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4.1 Certificate of Incorporation of FTD.COM (incorporated by
reference to Exhibit 3.1 to our Registration Statement on
Form S-1, as amended (File No. 333-78857 (the "S-1")).
4.2 Certificate of Amendment to Certificate of Incorporation of
FTD.COM relating to Series A 8% Cumulative Redeemable
Convertible Preferred Stock (incorporated by reference to
Exhibit 3.2 to the S-1).
4.3 Bylaws of the Company (incorporated by reference to
Exhibit 3.3 to the S-1).
4.4 FTD.COM INC. 1999 Equity Incentive Plan.
4.5 Form of Non-Qualified Stock Option Agreement.
4.6 Form of Director Non-Qualified Stock Option Agreement.
4.7 Form of Restricted Shares Agreement.
5.1 Opinion of Jones, Day, Reavis & Pogue as to the validity
of the securities registered hereunder.
23.1 Consent of Jones, Day, Reavis & Pogue (set forth in their
opinion filed as Exhibit 5.1 to this Registration Statement).
23.2 Consent of KPMG LLP.
24.1 Powers of Attorney.
