-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, I64E1GVCpoSN1eSdLU46oHUZ1/vb87Vp8hP7MaGhSr60pReL+LG1UxOjG0i9vRYx aOisTx+KLCwdZ9mUZcxLMw== 0000950149-00-000462.txt : 20000308 0000950149-00-000462.hdr.sgml : 20000308 ACCESSION NUMBER: 0000950149-00-000462 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20000307 EFFECTIVENESS DATE: 20000307 FILER: COMPANY DATA: COMPANY CONFORMED NAME: EGREETINGS NETWORK INC CENTRAL INDEX KEY: 0001083992 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 943207092 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-31892 FILM NUMBER: 562865 BUSINESS ADDRESS: STREET 1: 501 SECOND ST STE 114 STREET 2: 416-536-1870 CITY: SAN FRANCISCO STATE: CA ZIP: 94107 BUSINESS PHONE: 4155361870 MAIL ADDRESS: STREET 1: 501 SECOND ST STREET 2: STE 114 CITY: SAN FRANCISCO STATE: CA ZIP: 94107 FORMER COMPANY: FORMER CONFORMED NAME: E GREETINGS NETWORK DATE OF NAME CHANGE: 19991012 S-8 1 FORM S-8 FOR EGREETINGS NETWORK, INC. 1 As filed with the Securities and Exchange Commission on March 7, 2000 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 EGREETINGS NETWORK, INC. (Exact name of registrant as specified in its charter) Delaware 94-3207092 (State of Incorporation) (I.R.S. Employer Identification No.) 149 New Montgomery Street San Francisco, CA 94105 (Address of principal executive offices) 1996 Stock Option Plan 1999 Equity Incentive Plan 1999 Non-Employee Directors' Stock Option Plan 1999 Employee Stock Purchase Plan (Full title of the plans) Gordon M. Tucker Chief Executive Officer and Director 149 New Montgomery Street San Francisco, CA 94105 (415) 375-4100 (Name, address, including zip code, and telephone number, including area code, of agent for service) Copies to: Kenneth L. Guernsey, Esq. Karyn S. Tucker, Esq. Edward A. Kleinhans, Esq. Cooley Godward LLP One Maritime Plaza, 20th Floor San Francisco, CA 94111 (415) 693-2000 CALCULATION OF REGISTRATION FEE
==================================================================================================================================== Proposed Maximum Proposed Maximum Title of Securities Offering Aggregate Amount of to be Registered Amount to be Registered Price per Share (1) Offering Price (1) Registration Fee - ------------------------ ---------------------------- -------------------------- ---------------------------- ---------------------- Common Stock, par value 23,067,371 shares $2.90 - $6.49 $110,235,915.90 $29,102.28 $.0001 per share ====================================================================================================================================
(1) Estimated solely for the purpose of calculating the amount of the registration fee. The offering price per share and aggregate offering price are based upon (a) the weighted average exercise price for shares subject to options previously (i) granted under the Egreetings Network, Inc. (the "Company" or the "Registrant") 1996 Stock Option Plan, pursuant to Rule 457(h) under the Securities Act of 1933, as amended (the "Act"), (ii) granted under the 1999 Equity Incentive Plan, pursuant to Rule 457(h) under the Securities Act of 1933, as amended (the "Act") and (b) the average of the high and low prices of the Company's Common Stock as reported on the Nasdaq National Market on March 6, 2000 for shares available for grant pursuant to the 1999 Equity Incentive Plan, the 1999 Non-Employee Directors' Stock Option Plan and the 1999 Employee Stock Purchase Plan (collectively, the "Plans"), pursuant to Rule 457(c) under the Act. 2 The chart below details the calculation of the registration fee:
=============================================================================================================================== Maximum Maximum Title of Securities to be Amount to be Offering Price Per Aggregate Offering Price Amount of Registration Registered Registered Share (1) (1) Fee - ------------------------------------------------------------------------------------------------------------------------------- Shares of Common Stock 2,567,371 $2.90(1)(a) $7,445,375.90 issuable pursuant to outstanding options under the 1996 Stock Option Plan =============================================================================================================================== Shares of Common Stock 595,750 6.49(1)(a) $3,866,417.50 issuable pursuant to outstanding options under the 1999 Equity Incentive Plan =============================================================================================================================== Shares of Common Stock 14,408,250 $4.97(1)(b) $71,589,122.50 reserved for future grant under the 1999 Equity Incentive Plan =============================================================================================================================== Shares of Common Stock 500,000 $4.97(1)(b) $2,485,000 reserved for future grant under the 1999 Non-Employee Directors Stock Option Plan =============================================================================================================================== Shares of Common Stock 5,000,000 $4.97(1)(b) $24,850,000 reserved for future issuance under the 1999 Employee Stock Purchase Plan ============================================================================================================================== Totals 23,067,371 $110,235,915.90 $29,102.28 ========== =============== =========== ==============================================================================================================================
(1) Estimated solely for the purpose of calculating the amount of the registration fee. The offering price per share and aggregate offering price are based upon (a) the weighted average exercise price for shares subject to options previously (i) granted under the Egreetings Network, Inc. (the "Company" or the "Registrant") 1996 Stock Option Plan, pursuant to Rule 457(h) under the Securities Act of 1933, as amended (the "Act"), (ii) granted under the 1999 Equity Incentive Plan, pursuant to Rule 457(h) under the Securities Act of 1933, as amended (the "Act"), and (b) the average of the high and low prices of the Company's Common Stock as reported on the Nasdaq National Market on March 6, 2000 for shares available for grant pursuant to the 1999 Equity Incentive Plan, the 1999 Non-Employee Directors' Stock Option Plan and the 1999 Employee Stock Purchase Plan (collectively, the "Plans"), pursuant to Rule 457(c) under the Act. 3 INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents filed by Egreetings Network, Inc. with the Securities and Exchange Commission are incorporated by reference into this Registration Statement: (a) We filed our prospectus pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the "Act"), on December 16, 1999, that contains audited financial statements for our latest fiscal year for which such statements have been filed. (b) The description of our Common Stock which is contained in the registration statement on Form S-1 filed December 16, 1999 (No. 333-88595), under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), including any amendment or report filed for the purpose of updating such description. All reports and other documents subsequently filed by us 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 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 of this registration statement from the date of the filing of such reports and documents. INTERESTS OF NAMED EXPERTS AND COUNSEL The legality of the Common Stock offered hereby will be passed upon for us by Cooley Godward LLP, San Francisco, California. INDEMNIFICATION OF DIRECTORS AND OFFICERS Our certificate of incorporation contains provisions permitted under Delaware law relating to the liability of directors. These provisions eliminate a director's personal liability for monetary damages resulting from a breach of fiduciary duty, except in circumstances involving wrongful acts, such as: - any breach of the director's duty of loyalty; - acts or omissions which involve a lack of good faith, intentional misconduct or a knowing violation of the law; - payment of dividends or approval of stock repurchases or redemptions that are unlawful under Delaware law; or - any transaction from which the director derives an improper personal benefit. These provisions do not limit or eliminate our rights or any stockholder's rights to seek non-monetary relief, such as an injunction or rescission, in the event of a breach of director's fiduciary duty. These provisions will not alter a director's liability under federal securities laws. Our bylaws require us to indemnify our directors and executive officers to the fullest extent not prohibited by the Delaware law. We may limit the extent of such indemnification by individual contracts with our directors and executive officers. Further, we may decline to indemnify any director or executive officer in connection with any proceeding initiated by such person or any proceeding by such person against us or our directors, officers, employees or other agents, unless such indemnification is expressly required to be made by law or the proceeding was authorized by our board of directors. We entered into indemnity agreements with each of our current directors and certain of our executive officers to give such directors and officers additional contractual assurances regarding the scope of the indemnification set forth in our certificate of incorporation and bylaws and to provide additional procedural protections. At present, there is no pending litigation or proceeding involving any of our directors, officers or employees for which indemnification is sought, nor are we aware of any threatened litigation that may result in claims for indemnification. 1. 4 We have the power to indemnify our other officers, employees and other agents, as permitted by Delaware law, but we are not required to do so. We have obtained directors' and officers' liability insurance. EXEMPTION FROM REGISTRATION CLAIMED Not applicable. CONSULTANTS AND ADVISORS Not applicable. 2. 5 EXHIBITS
Exhibit Number - ------- 5.1 Opinion of Cooley Godward LLP 23.1 Consent of Ernst & Young LLP, Independent Accountants 23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this Registration Statement 24.1 Power of Attorney is contained on the signature pages 99.1 1996 Stock Option Plan and forms of grant thereunder(1) 99.2 1999 Equity Incentive Plan and forms of grant thereunder(2) 99.3 1999 Non-Employee Directors' Stock Option Plan and forms of grant thereunder(3) 99.4 1999 Employee Stock Purchase Plan and form of offering thereunder (4)
(1) Filed as an exhibit to the Form S-1 Registration Statement (Registration No. 333-88595) on October 7, 1999 and November 16, 1999, and incorporated herein by reference. (2) Filed as an exhibit to the Form S-1 Registration Statement (Registration No. 333-88595) on October 7, 1999 and November 16, 1999, and incorporated herein by reference. (3) Filed as an exhibit to the Form S-1 Registration Statement (Registration No. 333-88595) on October 7, 1999 and November 16, 1999, and incorporated herein by reference. (4) Filed as an exhibit to the Form S-1 Registration Statement (Registration No. 333-88595) on October 7, 1999 and November 16, 1999, and incorporated herein by reference. UNDERTAKINGS 1. The undersigned registrant hereby undertakes: (a) 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; (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) (ss. 230.424(b) of this chapter) 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; 3. 6 (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)(i) and (a)(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 by the issuer pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference herein. (b) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) 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. 2. The undersigned 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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 3. Insofar as indemnification for liabilities arising under the Securities Act 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 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 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 Securities Act and will be governed by the final adjudication of such issue. 4. 7 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Francisco, State of California, on March 7, 2000. EGREETINGS, INC. By: /s/ Gordon M. Tucker --------------------------------------------- Gordon M. Tucker Chief Executive Officer and Director POWER OF ATTORNEY Each person whose signature appears below constitutes and appoints Gordon Tucker and Andrew Moley, and each and any one of them, his true and lawful attorney-in-fact and agent, 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 (including post-effective amendments) to this Registration 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 connection therewith, as fully to all intent and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof. 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/ Gordon M. Tucker - -------------------------------------------- Chief Executive Officer and February 29, 2000 GORDON M. TUCKER Director (Principal Executive Officer) /s/ Andrew J. Moley - -------------------------------------------- Senior Vice President and Chief February 29, 2000 ANDREW J. MOLEY Financial Officer (Principal Financial and Accounting Officer) /s/ Stewart Alsop - -------------------------------------------- Director February 29, 2000 STEWART ALSOP - -------------------------------------------- Director February 29, 2000 CHARLES A. HOLLOWAY /s/ Brendan S. Kim - -------------------------------------------- Director February 29, 2000 BRENDAN S. KIM
5. 8
Signature Title Date /s/ Peter Nieh - -------------------------------------------- Director February 29, 2000 PETER NIEH /s/ Frank J. O'Connell - -------------------------------------------- Director February 29, 2000 FRANK J. O'CONNELL /s/ Lee Rosenberg - -------------------------------------------- Director February 29, 2000 LEE ROSENBERG
6. 9 EXHIBIT INDEX
Exhibit Number Description 5.1 Opinion of Cooley Godward LLP 23.1 Consent of Ernst & Young LLP, Independent Accountants 23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this Registration Statement 24.1 Power of Attorney is contained on the signature pages. 99.1 1996 Stock Option Plan and forms of grant thereunder(1) 99.2 1999 Equity Incentive Plan and forms of grant thereunder(2) 99.3 1999 Non-Employee Directors' Stock Option Plan and forms of grant thereunder(3) 99.4 1999 Employee Stock Purchase Plan and form of offering thereunder(4)
(1) Filed as an exhibit to the Form S-1 Registration Statement (Registration No. 333-88595) on October 7, 1999 and November 16, 1999, and incorporated herein by reference. (2) Filed as an exhibit to the Form S-1 Registration Statement (Registration No. 333-88595) on October 7, 1999 and November 16, 1999, and incorporated herein by reference. (3) Filed as an exhibit to the Form S-1 Registration Statement (Registration No. 333-88595) on October 7, 1999 and November 16, 1999, and incorporated herein by reference. (4) Filed as an exhibit to the Form S-1 Registration Statement (Registration No. 333-88595) on October 7, 1999 and November 16, 1999, and incorporated herein by reference. 7. EX-5.1 2 OPINION OF COOLEY GODWARD LLP 1 Exhibit 5.1 March 7, 2000 Egreetings Network, Inc. 149 New Montgomery Street San Francisco, CA 94105 Ladies and Gentlemen: You have requested our opinion with respect to certain matters in connection with the filing by Egreetings Network, Inc. (the "Company") of a Registration Statement on Form S-8 (the "Registration Statement") with the Securities and Exchange Commission covering the offering of up to an aggregate of 23,067,371 shares of the Company's Common Stock, $.001 par value, (the "Shares"), with respect to (a) 2,567,371 of the Shares issuable for issuance pursuant to its 1996 Stock Option Plan, 595,750 of the Shares issuable for issuance pursuant to its 1999 Equity Incentive Plan, 14,404,250 of the Shares issuable or reserved for issuance pursuant to its 1999 Equity Incentive Plan, 500,000 of the Shares issuable or reserved for issuance pursuant to its 1999 Non-Employee Directors' Stock Option Plan and 5,000,000 of the Shares issuable or reserved for issuance pursuant to its 1999 Employee Stock Purchase Plan (collectively, the "Plans"). In connection with this opinion, we have examined the Registration Statement and related Prospectus, your Certificate of Incorporation and Bylaws, as amended, and such other documents, records, certificates, memoranda and other instruments as we deem necessary as a basis for this opinion. We have assumed the genuineness and authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies thereof, and the due execution and delivery of all documents where due execution and delivery are a prerequisite to the effectiveness thereof. On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when sold and issued in accordance with the Plans, the Registration Statement and related Prospectus, will be validly issued, fully paid, and nonassessable (except as to shares issued pursuant to certain deferred payment arrangements, which will be fully paid and nonassessable when such deferred payments are made in full). We consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, COOLEY GODWARD LLP By:/s/ Kenneth L. Guernsey ------------------------------- Kenneth L. Guernsey KLG:eak EX-23.1 3 CONSENT OF ERNST & YOUNG LLP 1 Exhibit 23.1 CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated November 22, 1999 with respect to the financial statements of Egreetings Network, Inc. included in its Form S-1/A (No. 333-88595) as filed December 16, 1999 with Securities and Exchange Commission. /s/ Ernst & Young LLP - ------------------------------- Ernst & Young LLP Walnut Creek, California March 3, 2000 -----END PRIVACY-ENHANCED MESSAGE-----