As filed with the Securities and Exchange
Commission on December 8, 1999 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
FREESHOP.COM, INC.
(Exact name of Registrant as specified in its charter)
Washington 91-1809146
(State or other jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or organization)
95 South Jackson Street, Suite 300
Seattle, Washington 98104
Address of Principal Executive Offices
(206) 441-9100
(Registrant's Telephone Number, Including Area Code)
1997 Stock Option Plan
(Full Title of the Plan)
John A. Wade
FreeShop.com, Inc.
95 South Jackson Street, Suite 300
Seattle, Washington 98104
(Name and Address of Agent For Service)
(206) 441-9100
(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
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Proposed Maximum Proposed Maximum
Title of Each Class of Amount to Offering Price Per Aggregate Offering Amount of
Securities to be Registered (1) be Registered Share Price Registration Fee
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<S> <C> <C> <C> <C>
Common Shares subject to 990,390 shares $1.8464 (2) $1,828,642.69 $482.76
outstanding options
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Common Shares not subject to 1,278,493 shares $13.0625(3) $16,700,413.81 $4,408.91
outstanding options
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Total 2,268,883 shares $18,529,056.50 $4,891.67
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</TABLE>
(1) Common Shares, without par value, offered by the Company pursuant to the
1997 Stock Option Plan, as amended.
(2) Based on the average exercise price of options granted under the 1997 Stock
Option Plan outstanding as of the date of the filing of this registration
statement.
(3) The proposed maximum offering price per share and the registration fee were
calculated in accordance with rule 457(c) and (h) based on the average of
the high and low prices for shares of the registrant's common shares on
December 2, 1999, as quoted by the Nasdaq National Market, which was
$13.0625 per share.
Page 1 of __ pages. Exhibit Index begins at page __.
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PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed with the Commission, are
incorporated herein by reference:
1. The Registrant's prospectus filed pursuant to Rule 424(b) under the
Securities Act of 1933 dated September 27, 1999.
2. The Registrant's Quarterly Report on Form 10-Q for the period ended
September 30, 1999.
3. The description of the Registrant's securities contained in the
Registrant's Registration Statement on Form 8-A filed with the
Commission on August 16, 1999 under Section 12(g) of the Exchange Act,
including any amendment or report filed for the purpose of updating
such description.
All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date hereof and 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
filing of such documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Sections 23B.08.500 through 23B.08.600 of the Washington Business
Corporation Act (the "Washington Act") authorize a court to award, or a
corporation's board of directors to grant, indemnification to directors and
officers on terms sufficiently broad to permit indemnification under certain
circumstances for liabilities arising under the Securities Act of 1933, as
amended (the "Securities Act"). Article 6 of the registrant's Second Amended and
Restated Articles of Incorporation and Article IX of the registrant's Amended
and Restated Bylaws together provide for indemnification of the registrant's
directors, officers, employees and agents to the maximum extent permitted by
Washington law. The registrant has entered into agreements with its directors
and officers arising out of their service as officers and director, as
applicable, and has agreed to advance expenses to defend claims subject to
indemnification. The directors and officers of the registrant also may be
indemnified against liability they may incur for serving in that capacity
pursuant to a liability insurance policy maintained by the registrant for such
purpose.
Section 23B.08.320 of the Washington Act authorizes a corporation to limit
a director's liability to the corporation or its shareholders for monetary
damages for acts or omissions as a director, except in certain circumstances
involving intentional misconduct, self-dealing or illegal corporate loans or
distributions, or any transaction from which the director personally receives a
benefit in money, property or services to which the director is not legally
entitled. Article 6 of the registrant's Articles of Incorporation contains
provisions implementing, to the fullest extent permitted by Washington law, such
limitations on a director's liability to the registrant and its shareholders.
Insofar as indemnification for liabilities arising under the U.S.
Securities Act may be permitted for directors, officers or persons controlling
the Registrant pursuant to the foregoing provisions, the Registrant has been
informed that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not Applicable.
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Item 8. Exhibits.
Exhibit Number Exhibit
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4.1* 1997 Stock Option Plan, as amended
5.1 Opinion of Dorsey & Whitney LLP
23.1 Consent of PricewaterhouseCoopers LLP, independent
accountants
23.4 Consent of Dorsey & Whitney LLP (Included in Exhibit 5.1)
24.1 Powers of Attorney (included on the signature pages)
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* Incorporated by reference to Exhibit 10.2 to the Registrant's Registration
Statement on Form S-1 (333-81151)
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
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) if, in the aggregate, the
change in volume and price represents 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 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, Form S-8, or Form F-3 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 Section 15(d) of the Exchange Act that are
incorporated by reference in this registration statement.
(2) That for the purpose of determining any liability under the 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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the 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 therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant
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<PAGE>
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 of 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
The Registrant. 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 or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in Seattle, Washington, on November 3,
1999.
FREESHOP.COM, INC.
(Registrant)
By: /s/ Timothy C. Choate
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Timothy C. Choate
Chariman, President and Chief Executive
Officer
POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Timothy C. Choate and John A. Wade, and each of
them, his true and lawful attorneys-in-fact and agents, 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 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 said
attorneys-in-fact and agents of them or their substitute or substitutes, may
lawfully do or cause to be done by virtue thereof.
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 date indicated.
Signature Title Date
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/s/ Timothy C. Choate Chairman, President and November 2, 1999
- ---------------------------- Chief Executive Officer
Timothy C. Choate
/s/ John A. Wade Secretary, Vice President, November 2, 1999
- ---------------------------- Finance and Chief Financial
John A. Wade Officer
/s/ John P. Ballantine Director November 2, 1999
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John P. Ballantine
/s/ Kirk M. Loevner Director November 2, 1999
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Kirk M. Loevner
<PAGE>
Signature Title Date
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/s/ John B. Balousek Director November 2, 1999
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John B. Balousek
/s/ William J. Lansing Director November 2, 1999
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William J. Lansing
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EXHIBIT INDEX
Exhibit
Number Exhibit Page
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4.1* 1997 Stock Option Plan, as amended
5.1 Opinion of Dorsey & Whitney LLP
23.1 Consent of PricewaterhouseCoopers LLP,
independent accountants
23.4 Consent of Dorsey & Whitney LLP (Included
in Exhibit 5.1)
24.1 Powers of Attorney (included on the
signature pages)
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* Incorporated by reference to Exhibit 10.2 to the Registrant's Registration
Statement on Form S-1 (333-81151)
EXHIBIT 5.1
DORSEY & WHITNEY LLP
U.S. BANK CENTRE
1420 FIFTH AVENUE, SUITE 4200
SEATTLE, WASHINGTON 98101
TELEPHONE: (206) 903-8800
FAX: (206 903-8820
FreeShop.com, Inc.
95 South Jackson Street
Suite 300
Seattle, Washington 98104
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to FreeShop.com, Inc., a Washington corporation
(the "Company"), in connection with a Registration Statement on Form S-8 (the
"Registration Statement") relating to the sale by the Company of up to 2,268,883
shares of common stock of the Company, no par value per share, initially
issuable upon the exercise of stock options granted pursuant to the Company's
1997 Stock Option Plan, as amended (the "Plan").
We have examined such documents and have reviewed such questions of law as
we have considered necessary and appropriate for the purposes of the opinions
set forth below.
In rendering our opinions set forth below, we have assumed the authenticity
of all documents submitted to us as originals, the genuineness of all signatures
and the conformity to authentic originals of all documents submitted to us as
copies. We have also assumed the legal capacity for all purposes relevant hereto
of all natural persons and, with respect to all parties to agreements or
instruments relevant hereto other than the Company, that such parties had the
requisite power and authority (corporate or otherwise) to execute, deliver and
perform such agreements or instruments, that such agreements or instruments have
been duly authorized by all requisite action (corporate or otherwise), executed
and delivered by such parties and that such agreements or instruments are the
valid, binding and enforceable obligations of such parties. As to questions of
fact material to our opinions, we have relied upon certificates of officers of
the Company and of public officials.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized and, upon issuance, delivery and payment therefor in accordance
with the terms of the Plan, will be validly issued, fully paid and
nonassessable.
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Our opinions expressed above are limited to the laws of Washington.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Dated: December 8, 1999
Very truly yours,
/s/ Dorsey & Whitney LLP
EXHIBIT 23.1
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our reports dated April 16, 1999, except as to
paragraphs three through seven of Note 13 which are as of June 18, 1999, and
paragraph eight of Note 13 which is as of August 9, 1999, relating to the
financial statements and financial statement schedule of FreeShop.com, Inc.,
which appear in FreeShop.com, Inc.'s Registration Statement on Form S-1, as
amended (File No. 333-81151).
/s/ PricewaterhouseCoopers LLP
Seattle, Washington
December 6, 1999
