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As filed with the Securities and Exchange Commission on January 12, 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
RESOURCEPHOENIX.COM
(Exact name of registrant as specified in its charter)
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<S> <C>
DELAWARE 52-2190830
(State of Incorporation) (I.R.S. Employer Identification No.)
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RESOURCEPHOENIX.COM
2401 KERNER BOULEVARD
SAN RAFAEL, CA 94901
(Address of Principal Executive Offices, including Zip Code)
1999 STOCK PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
GUS CONSTANTIN
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
2401 KERNER BOULEVARD
SAN RAFAEL, CA 94901
(415) 485-4500
(Name, address and telephone number of agent for service)
Copies to:
ALAN K. AUSTIN
STEVEN V. BERNARD
JAMES C. CREIGH
WILSON SONSINI GOODRICH & ROSATI, P.C.
650 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304-1050
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED REGISTERED(1) PER SHARE OFFERING PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Class A Common Stock, $0.001 par value, 977,188 $2.92 (2) $2,853,389 $753
to be issued upon exercise of options
granted and outstanding under the 1999
Stock Plan
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Class A Common Stock, $0.001 par value, 282,812 $16.875 (3) $4,772,453 $1,260
to be issued upon exercise of options
available for grant under the 1999
Stock Plan
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Class A Common Stock, $0.001 par value, 360,000 $16.875 (3) $6,075,000 $1,604
to be issued under the 1999 Employee
Stock Purchase Plan
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TOTAL 1,620,000 $13,700,842 $3,617
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(1) This Registration Statement shall also cover any additional shares of Class
A Common Stock which become issuable under the shares registered pursuant
to this Registration Statement by reason of any stock dividend, stock
split, recapitalization or any other similar transaction effected without
the receipt of consideration which results in an increase in the number of
the Registrant's outstanding shares of Class A Common Stock.
(2) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee of options granted and outstanding, based
on the weighted average exercise price of the outstanding options as of
January 6, 2000, which average is $2.92.
(3) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee of options remaining available for grant,
based on the average price of the high and low price as reported by the
Nasdaq Stock Market on January 6, 2000, which average price is $16.875.
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RESOURCEPHOENIX.COM
REGISTRATION STATEMENT ON FORM S-8
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents and information previously filed by
ResourcePhoenix.com (the "Registrant") with the Securities and Exchange
Commission (the "Commission") are incorporated by reference into the
Registration Statement:
1. The Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1999.
2. The Registrant's prospectus filed pursuant to Rule 424(b) on October
14, 1999.
3. The description of the Registrant's Class A Common Stock contained in
the Registrant's Registration Statement on Form 8-A filed September 24, 1999.
All documents subsequently filed by the Registrant pursuant to Sections
13(a) or 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 in this Registration Statement and to be 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.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 12 of the Registrant's Certificate of Incorporation and Article VI
of the Registrant's Bylaws provide for mandatory indemnification of its
directors and officers, and permissible indemnification of employees and other
agents, to the maximum extent permitted by the Delaware General Corporation Law.
In addition, the Registrant will enter into Indemnification Agreements with its
officers and directors. Delaware law provides that directors of a company will
not be personally liable for monetary damages for breach of their fiduciary
duties as directors, except for liability (i) for any breach of their duty of
loyalty to the Registrant or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or knowing violation of law,
(iii) for unlawful payments or dividends or unlawful stock repurchases or
redemptions as provided Section 174 of Delaware General Corporation Law or (iv)
for transactions from which the director derived an improper personal benefit.
Delaware Law does not permit a corporation to eliminate a director's duty of
care, and the provisions of the Registrant's Certificate of Incorporation have
no effect on the availability of equitable remedies such as injunction or
rescission, based upon a director's breach of the duty of care.
ITEM 7. EXEMPTION FROM REGISTRATION
Not applicable.
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ITEM 8. EXHIBITS.
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Exhibit Number Description
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4.1* 1999 Stock Plan (incorporated by reference to
Exhibit 4.1 to the Registrant's Registration
Statement on Form S-1 (File No. 333-84589)).
4.2* 1999 Employee Stock Purchase Plan (incorporated
by reference to Exhibit 4.2 to the Registrant's
Registration Statement on Form S-1 (File No.
333-84589)).
5.1 Opinion of counsel as to legality of securities being
registered.
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants.
23.2 Consent of Wilson Sonsini Goodrich & Rosati, P.C.
(contained in Exhibit 5.1).
24.1 Power of Attorney (contained on signature page).
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ITEM 9. UNDERTAKINGS.
(a) The Registrant hereby undertakes:
(i) To file, during any period 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.
(ii) That, for the purpose of determining any liability under the
Securities Act, each 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.
(iii) 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 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 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 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to law, the Registrant's Amended
and Restated Certificate of Incorporation, Bylaws, indemnification
agreements, or otherwise, the 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 the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in a successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in
connection with the securities being registered hereunder, the
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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 Securities 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, 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 Rafael, State of California, on this 13th day of
December, 1999.
RESOURCEPHOENIX.COM
By: /s/ Bryant Tong
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Bryant Tong
President and Chief Operating Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Gus Constantin, Bryant Tong and Gregory
Thornton as his attorney-in-fact, with full power of substitution in each, for
him in any and all capacities to sign any amendments to this registration
statement on Form S-8, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Commission, hereby ratifying and
confirming all that said attorney-in-fact, or his substitutes, may do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
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Signature Title Date
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/s/ Gus Constantin Chairman of the Board and December 13, 1999
- -------------------------------- Chief Executive Officer
Gus Constantin (Principal Executive Officer)
/s/ Bryant Tong President, Chief Operating Officer and December 13, 1999
- -------------------------------- Director
Bryant Tong
/s/ Gregory Thornton Chief Financial Officer (Principal Financial December 13, 1999
- -------------------------------- and Accounting Officer)
Gregory Thornton
/s/ James Barrington Director December 15, 1999
- --------------------------------
James Barrington
/s/ Glen McLaughlin Director December 15, 1999
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Glen McLaughlin
/s/ Roger Smith Director December 15, 1999
- --------------------------------
Roger Smith
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INDEX TO EXHIBITS
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Exhibit Number Description
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4.1* 1999 Stock Plan (incorporated by reference to
Exhibit 4.1 to the Registrant's Registration
Statement on Form S-1 (File No. 333-84589)).
4.2* 1999 Employee Stock Purchase Plan (incorporated
by reference to Exhibit 4.2 to the Registrant's
Registration Statement on Form S-1 (File No.
333-84589)).
5.1 Opinion of counsel as to legality of securities being
registered.
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants.
23.2 Consent of Wilson Sonsini Goodrich & Rosati, P.C.
(contained in Exhibit 5.1).
24.1 Power of Attorney (contained on signature page).
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EXHIBIT 5.1
[Wilson Sonsini Goodrich & Rosati letterhead]
January 10, 2000
ResourcePhoenix.com
2401 Kerner Boulevard
San Rafael, CA 94901
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on or about January 7, 2000 (the
"Registration Statement"), in connection with the registration under the
Securities Act of 1933, as amended, of an aggregate of 1,620,000 shares of Class
A Common Stock, par value $0.001 (the "Shares"), reserved for issuance pursuant
to the 1999 Stock Plan and the 1999 Employee Stock Purchase Plan (collectively,
the "Plans"). As your legal counsel, we have examined the proceedings taken and
are familiar with the proceedings proposed to be taken by you in connection with
the sale and issuance of the Shares under the Plans.
It is our opinion that the Shares will be, when issued and sold in the
manner referred to in the Plans, legally and validly issued, fully paid and
nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement and any subsequent amendment thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati P.C.
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Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our reports
(and to all references to our Firm) included in or made a part of this
registration statement.
/s/ Arthur Andersen LLP
San Francisco, California
January 7, 2000
