As filed with the Securities and Exchange Commission on June 16, 2000.
Registration No. 333 -
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF
1933
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ORGANIC, INC.
(Exact name of registrant as specified in its charter)
Delaware 94-3258989
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
510 Third Street
San Francisco, California 94107
(415) 365-5500
(Address of Principal Executive Offices)
ORGANIC, INC. 2000 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
Jonathan Nelson
Chief Executive Officer
Organic, Inc.
510 Third Street
San Francisco, California 94107
(Name and address of agent for service)
(415) 365-5500
(Telephone number, including area code, of agent for service)
Calculation of Registration Fee
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Propoed Proposed
Title of maximum maximum
securities offering aggregate Amount of
to be Amount to be price offering Registration
registered registered per share(1) price(1) fee
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Common Stock, par
value $0.0001
per share (2) 10,000,000 shares $11.34375 $113,437,500.00 $29,947.50
===============================================================================
(1) Estimated solely for the purpose of calculating the registration fee.
Such estimate has been computed in accordance with Rule 457(h), based on
the average of the high and low sale prices on the Nasdaq National Market
on June 13, 2000 for the Company's Common Stock.
(2) Associated with the Company's Common Stock are Preferred Stock Purchase
Rights, which will not be exercisable or evidenced separately from the
Common Stock prior to the occurrence of certain events.
The Registration Statement shall become effective upon filing in accordance
with Rule 462 under the Securities Act of 1933.
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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.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The reports listed below have been filed with or furnished to
the Securities and Exchange Commission (the "Commission") by Organic, Inc.
(the "Company") and are incorporated herein by reference to the extent not
superseded by documents or reports subsequently filed or furnished:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1999, Reg. No. 000-29405, as filed with the Commission on
May 8, 2000;
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2000, Reg. No. 000-29405, as filed with the Commission on
May 15, 2000; and
(c) The description of the Company's Common Stock and the
associated Series C Preferred Stock Purchase Rights contained in the Company's
Prospectus filed pursuant to Rule 424(b)(4) under the Securities Act of 1933,
Reg. No. 333-91627, as filed with the Commission on February 10, 2000.
All documents subsequently filed pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 by the Company
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 the
Registration Statement and to be part thereof from the date of filing of
such documents.
Item 4. Description of Securities
The information required by Item 4 is not applicable to this
Registration Statement because the class of securities to be offered is
registered under Section 12 of the Securities Exchange Act of 1934.
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Item 5. Interests of Named Experts and Counsel
None.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law
authorizes a court to award, or a corporation's board of directors to
grant, indemnity to officers, directors and other corporate agents under
certain circumstances and subject to certain limitations. The Company's
certificate of incorporation and bylaws provide that it shall indemnify the
directors, officers, employees and agents of the Company to the fullest
extent permitted by Delaware General Corporation Law, including in
circumstances in which indemnification is otherwise discretionary under
Delaware law. In addition, the Company has entered into separate
indemnification agreements with its directors, officers and certain
employees which would require it, among other things, to indemnify them
against certain liabilities which may arise by reason of their status as
directors, officers or certain other employees. The Company also maintains
director and officer liability insurance.
These indemnification provisions and the indemnification
agreements entered into between the Company and its officers and directors
may be sufficiently broad to permit indemnification of its officers and
directors for liabilities, including reimbursement of expenses incurred,
arising under the Securities Act of 1933.
Item 7. Exemption from Registration Claimed
The information required by Item 7 is not applicable to this
Registration Statement.
Item 8. Exhibits
Incorporated by reference to the Exhibit Index attached hereto.
Item 9. Undertakings
The undersigned Company 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 a 20% 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 (1)(i) and (1)(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 with or furnished to the
Commission by the Company 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; 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 Company hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing
of the Company's annual report pursuant to Section 13(a) or 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.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Company pursuant to the provisions described in
Item 6 of this Registration Statement, or otherwise, the Company has been
advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer, or controlling person of the
Company 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 Company will, unless in the
opinion of 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 of 1933 and will be governed by the final adjudication of
such issue.
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SIGNATURE OF ORGANIC, INC.
Pursuant to the requirements of the Securities Act of 1933,
the Company 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 San Francisco, California, as of
June 15, 2000.
ORGANIC, INC.
By: /s/ Jonathan Nelson
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Jonathan Nelson
Chief Executive Officer
and Chairman of the Board
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned
officers and directors of Organic, Inc. hereby constitutes and appoints
Susan L. Field and Margaret Maxwell Zagal (with full power to act alone),
his or her true and lawful attorneys-in-fact and agents, with full power of
substitution, for him or her and in his or her name, place, and stead, in
any and all capacities, to sign, execute, and file any or all amendments
(including, without limitation, post-effective amendments) to this
Registration Statement, and to file the same with all exhibits thereto, and
all other documents in connection therewith, with the Commission or any
regulatory authority, granting unto such 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 in
order to effectuate the same, as fully to all intents and purposes as he or
she might or could do, if personally present, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or
any of their substitutes, may lawfully do or cause to be done.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities indicated as of June 15, 2000.
Name of Signatory Title of Signatory
----------------- ------------------
/s/ Jonathan Nelson Chief Executive Officer and Chairman of
------------------------- the Board (Principal Executive Officer)
Jonathan Nelson
/s/ Michael Hudes President and Director
-------------------------
Michael Hudes
/s/ Susan L. Field Executive Vice President and Chief Financial
------------------------- Officer (Principal Financial Officer)
Susan L. Field
/s/ Shelly A. Saunders Vice President, Corporate Controller and
------------------------- Treasurer (Principal Accounting Officer)
Shelly A. Saunders
/s/ Gary F. Hromadko Director
-------------------------
Gary F. Hromadko
/s/ Gerald Bruce Redditt Director
-------------------------
Gerald Bruce Redditt
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EXHIBIT INDEX
EXHIBIT
NUMBER DOCUMENT
4.1 Amended and Restated Certificate of Incorporation of the
Company, incorporated by reference to Exhibit 3.1 of
Amendment No. 5 to the Registration Statement on Form S-1
(Reg. No. 333-91627).
4.2 Amended and Restated Bylaws of the Company, incorporated
by reference to Exhibit 3.2 of Amendment No. 4 to the
Registration Statement on Form S-1 (Reg. No. 333-91627).
4.3 Specimen Stock Certificate of the Company, incorporated
by reference to Exhibit 4.2 of Amendment No. 1 to the
Registration Statement on Form S-1 (Reg. No. 333-91627).
4.4 Rights Agreement, dated as of February 9, 2000, by and
between the Company and EquiServe Trust Company, N.A., as
Rights Agent, incorporated by reference to Exhibit 4.3 of
the Company's Annual Report on Form 10-K for the year
ended December 31, 1999 (Reg. No. 000-29405).
4.5 Investors' Rights Agreement, dated as of February 8, 2000,
by and among the Company, Organic Holdings, Inc. and
Omnicom Group Inc., incorporated by reference to Exhibit
4.4 of Amendment No. 4 to the Registration Statement on
Form S-1 (Reg. No. 333-91627).
4.6 Organic, Inc. 2000 Employee Stock Purchase Plan,
incorporated by reference to Exhibit 10.17 of Amendment
No. 5 to the Registration Statement on Form S-1 (Reg.
No. 333-91627).
5 Opinion and consent of Morrison & Foerster LLP, as to the
legality of the Common Stock being registered.
23.1 Consent of Morrison & Foerster LLP (included in
Exhibit 5).
23.2 Consent of PricewaterhouseCoopers LLP, Independent Public
Accountants, San Francisco, California.
24 Power of Attorney (included on the signature page
hereof).
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