Found this:
www1.freeedgar.com
1.8 million new shares to be registered.
yahoo shows 18.8 million shares outstanding.
biz.yahoo.com
not a lot of dilution, it shouldn't hurt the stock price and it will give the company more working capital.
ONSALE INC S-8
Filing Date: 7/13/98
TYPE: S-8
SEQUENCE: 1
DESCRIPTION: FORM S-8
As filed with the Securities and Exchange Commission on July 13, 1998
Registration No. 333-______
______________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________________________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ONSALE, INC.
(Exact name of issuer as specified in its charter)
Delaware 77-0408319
(State of Incorporation) (I.R.S. Employer Identification No.)
1350 Willow Road, Suite 202, Menlo Park, California 94025
(Address of Principal Executive Office Including Zip Code)
ONSALE, INC.
1995 EQUITY INCENTIVE PLAN
1996 EMPLOYEE STOCK PURCHASE PLAN
---------------------------------
(Full titles of the plans)
Leslie S. Benson
Acting Chief Financial Officer
1350 Willow Road, Suite 202
Menlo Park, California 94025
(650) 470-2400
(Name, address and telephone number of agent for service)
Copy to:
Horace L. Nash, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, CA 94306
----------------------------------------------------------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
==================================================================================================================================
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PRICE PER SHARE OFFERING PRICE REGISTRATION FEE
----------------------------------------------------------------------------------------------------------------------------------
Common Stock, $0.001 par value 1,950,000 (1) $ 26.46875(2) $51,614,062.50(2) $15,227
==================================================================================================================================
(1) Represents 1,800,000 additional shares reserved for issuance upon exercise
of stock options under the Registrant's 1995 Equity Incentive Plan and
150,000 additional shares available for issuance under the Registrant's
1996 Employee Stock Purchase Plan pursuant to amendments of such plans
approved on March 16, 1998. Shares issuable upon exercise of stock options
under the Registrant's 1995 Equity Incentive Plan and shares available for
issuance under the Registrant's 1996 Employee Stock Purchase Plan were
originally registered on a Registration Statement on Form S-8 (File No.
333-25455) filed on April 18, 1997.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) under the Securities Act of 1933 and based upon
an average of the high and low prices reported on the Nasdaq National
Market on July 6, 1998.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
-----------------------------------------------
The following documents filed with the Securities and Exchange Commission
(the "Commission") are incorporated herein by reference:
----------
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997 filed with the Commission on March 31, 1998 pursuant
to Section 13(a) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), which contains audited financial statements for
------------
the Registrant's fiscal year ended December 31, 1997, and the
amendment thereto filed with the Commission on May 21, 1998.
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1998 filed with the Commission on May 15, 1998
pursuant to Section 13(a) of the Exchange Act.
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed with the
Commission on January 9, 1997, and in its Registration Statement on
Form 8-A filed with the Commission on March 11, 1997, each as filed
under Section 12(g) of the Exchange Act, including any amendment or
report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant 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 registered hereby have
been sold or which de-registers all securities then remaining unsold, shall be
deemed incorporated by reference herein and to be a part hereof from the date of
the 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.
-----------------------------------------
As permitted by the Delaware General Corporation Law, the Registrant's
Certificate of Incorporation includes a provision that eliminates the personal
liability of its directors for monetary damages for breach of fiduciary duty as
a director. At this time, Delaware General Corporation Law does not permit
indemnification for liability (i) for any breach of the director's duty of
loyalty to the corporation and its stockholders, (ii) for acts or omissions not
in good faith or that involve intentional misconduct or a knowing violation of
the law, (iii) under Section 174 of the Delaware General Corporation Law or (iv)
for any transaction from which the director derived an improper personal
benefit.
As permitted by Section 145 of the Delaware General Corporation Law, the
Bylaws of the Registrant provide that (i) the Registrant is required to
indemnify its directors and executive officers to the fullest extent permitted
by the Delaware General Corporation Law, (ii) the Registrant is required, with
certain exceptions, to advance expenses, as incurred, to its directors and
executive officers in connection with a legal proceeding to the fullest extent
permitted by the Delaware General Corporation Law, (iii) the rights conferred in
the Bylaws are not exclusive and (iv) the Registrant is authorized to enter into
indemnity agreements with its directors, officers, employees, and agents.
1
The Registrant has entered into indemnity agreements with each of its
directors and executive officers to give such directors and executive officers
additional contractual assurances regarding the scope of the indemnification set
forth in the Registrant's Bylaws and to provide additional procedural
protections.
Item 7. Exemption From Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
--------
Exhibit No. Description
---------- -----------
4.01 Registrant's 1995 Equity Incentive Plan, as amended through March 16,
1998
4.02 Registrant's 1996 Employee Stock Purchase Plan, as amended through
March 16, 1998
4.03* Certificate of Incorporation of the Registrant filed on December 12, 1996
(previously filed as Exhibit 3.01 to the Registrant's Registration Statement on
Form S-1, File No. 333-18459)
4.04* Investors Rights Agreement dated as of September 12, 1996 (previously filed as
Exhibit 4.01 to the Registrant's Registration Statement on Form S-1, File No.
333-18459)
4.05* Bylaws of the Registrant, dated as of December 12, 1996 (previously filed as
Exhibit 3.02 to the Registrant's Registration Statement on Form S-1, File No.
333-18459)
5.01 Opinion of Fenwick & West LLP
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01)
23.02 Consent of PricewaterhouseCoopers LLP
24.01 Power of Attorney (See page 4)
___________________________
* These exhibits were previously filed with the Commission as indicated and
are incorporated herein by reference.
Item 9. Undertakings.
------------
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:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(b) 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 thereto) 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
2
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 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement;
(c) 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)(a) and (1)(b) 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 registrant pursuant to Section 13 or Section 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.
(4) 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 Section 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.
(5) To deliver or cause to be delivered with the prospectus, to each person
to whom the prospectus is sent or given, the latest annual report to security
holders that is incorporated by reference in the prospectus and furnished
pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the
Securities Exchange Act of 1934; and, where interim financial information
required to be presented by Article 3 of Regulation S-X is not set forth in the
prospectus, to deliver, or cause to be delivered to each person to whom the
prospectus is sent or given, the latest quarterly report that is specifically
incorporated by reference in the prospectus to provide such interim financial
information.
(6) 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.
3
POWER OF ATTORNEY
-----------------
Each person whose signature appears below constitutes and appoints S.
Jerrold Kaplan and Leslie S. Benson, and each of them, his or her true and
lawful attorneys-in-fact and agents, each with the power of substitution, for
him and her in his or her name, place and stead, in any and all capacities, to
sign any and all amendments (including post-effective amendments) to this
Registration Statement and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
granting to 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 intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, or their substitutes, may
lawfully do or cause to be done by virtue hereof.
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, the registrant,
ONSALE, Inc., 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 Menlo Park, State of California, on June 8th,
1998.
ONSALE, INC.
By: /s/ Leslie S. Benson
---------------------------------
Leslie S. Benson
Acting Chief Financial Officer
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.
Signature Title Date
----------------------------------- --------------------------------------- ---------------------------------------
/s/ S. Jerrold Kaplan President and Chief Executive July 8, 1998
----------------------------------- Officer and Director
S. Jerrold Kaplan
/s/ Leslie S. Benson Vice President, Controller and July 8, 1998
----------------------------------- Acting Chief Financial Officer
Leslie S. Benson
/s/ Alan S. Fisher Vice President of Development and July 8, 1998
----------------------------------- Operations, Chief Technical Officer
Alan S. Fisher and Director
/s/ Peter L. Harris Director July 8, 1998
-----------------------------------
Peter L. Harris
/s/ Peter H. Jackson Director July 8, 1998
-----------------------------------
Peter H. Jackson
/s/ Kenneth J. Orton Director July 8, 1998
-----------------------------------
Kenneth J. Orton
4
INDEX TO EXHIBITS
-----------------
Exhibit No. Description
---------- -----------
4.01 Registrant's 1995 Equity Incentive Plan, as amended through March
16, 1998
4.02 Registrant's 1996 Employee Stock Purchase Plan, as amended through
March 16, 1998
5.01 Opinion of Fenwick & West LLP
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01)
23.02 Consent of PricewaterhouseCoopers LLP
24.01 Power of Attorney (See page 4) |
