As filed with the Securities and Exchange Commission on March 14, 2011
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CONVIO, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware |
| 74-2935609 |
(State or Other Jurisdiction of |
| (I.R.S. Employer Identification Number) |
11501 Domain Drive, Suite 200
Austin, Texas 78758
(Address of Principal Executive Offices including Zip Code)
2009 Stock Incentive Plan
(Full Title of the Plans)
Gene Austin
Chief Executive Officer
11501 Domain Drive, Suite 200
Austin, TX 78758
(Name and address of agent for service)
(512) 652-2600
(Telephone number, including area code, of agent for service)
Copy to:
John J. Gilluly, III, P.C.
DLA Piper LLP (US)
401 Congress Avenue, Suite 2500
Austin, Texas 78701
(512) 457-7000
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definition of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. Check one:
Large Accelerated Filer | o | Accelerated Filer | o |
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Non-Accelerated Filer | x | Smaller Reporting Company | o |
CALCULATION OF REGISTRATION FEE
Title of Securities To Be Registered |
| Amount to be |
| Proposed |
| Proposed |
| Amount of |
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Common Stock, $0.001 Par Value |
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—To be issued under the 2009 Stock Incentive Plan |
| 704,501 |
| $ | 10.66 |
| $ | 7,509,981 |
| $ | 871.91 |
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(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall also cover any additional shares of the Registrant’s common stock that become issuable under the 2009 Stock Incentive Plan (the “2009 Plan”) by reason of any stock dividend, stock split, recapitalization or similar transaction effected without the registrant’s receipt of consideration which would increase the number of outstanding shares of common stock. To the extent future awards under the 2009 Plan are forfeited or lapse unexercised, the shares of common stock subject to such awards will be available for future issuance under the 2009 Plan.
(2) This estimate is made pursuant to 457(h) of the Securities Act for purposes of calculating the registration fee. The Proposed Maximum Offering Price Per Share is based on the average of the high and low prices for the registrant’s common stock as reported on the NASDAQ on March 11, 2011.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I, Items 1 and 2, have been or will be delivered to participants in accordance with Form S-8 and Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
In this registration statement, Convio, Inc. is sometimes referred to as “Registrant,” “we,” “us” or “our.”
Item 3. Incorporation of Documents by Reference.
The Securities and Exchange Commission (the “SEC”) allows us to “incorporate by reference” the information we file with them, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this registration statement, and later information filed with the SEC will update and supersede this information. We hereby incorporate by reference into this registration statement the following documents previously filed with the SEC:
(a) The Registrant’s Annual Report on Form 10-K containing audited financial statements for the fiscal year ended December 31, 2010, filed with the Commission on March 11, 2011;
(b) The description of the Registrant’s common stock contained in the Registrant’s registration statement on Form 8-A (Registration No. 001-34707), as amended, filed by the Registrant with the SEC under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on April 21, 2010, including any amendments or reports filed for the purpose of updating such description; and
(c) All reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the prospectus referred to in (a) above.
All reports and definitive proxy or information statements filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which de-registers all securities then remaining unsold shall be deemed to be incorporated by reference into this Registration Statement 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.
Section 145 of the Delaware General Corporation Law permits a corporation to include in its charter documents, and in agreements between the corporation and its directors and officers, provisions expanding the scope of indemnification beyond that specifically provided by the current law.
Our restated certificate of incorporation contains provisions that limit the liability of our directors for monetary damages to the fullest extent permitted by Delaware law. Consequently, our directors will not be personally liable to us or our stockholders for monetary damages for any breach of fiduciary duties as directors, except liability for:
· any breach of the director’s duty of loyalty to us or our stockholders;
· any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;
· unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the Delaware General Corporation Law; or
· any transaction from which the director derived an improper personal benefit.
These limitations of liability do not apply to liabilities arising under federal securities laws and do not affect the availability of equitable remedies, such as injunctive relief or rescission.
Our restated certificate of incorporation and bylaws in effect provide that we are required to indemnify our directors and officers, in each case to the fullest extent permitted by Delaware law. Any repeal of or modification to our restated certificate of incorporation or bylaws may not adversely affect any right or protection of a director or officer for or with respect to any acts or omissions of that director or officer occurring prior to that amendment or repeal. Our bylaws also provide that we will advance expenses incurred by a director or officer in advance of the final disposition of any action or proceeding, and permit us to secure insurance on behalf of any officer, director, employee or other agent for any liability arising out of his or her actions in that capacity regardless of whether we would otherwise be permitted to indemnify him or her under the provisions of Delaware law. We have obtained such a directors’ and officers’ liability insurance policy. We have entered and expect to continue to enter into agreements to indemnify our directors and executive officers. With certain exceptions, these agreements provide for indemnification for related expenses including, among other things, attorneys’ fees, judgments, fines and settlement amounts incurred by any of these individuals in any action or proceeding. We believe that these bylaw provisions and indemnification agreements are necessary to attract and retain qualified persons as directors and executive officers.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Index to |
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4.1 |
| Restated Certificate of Incorporation, as currently in effect (incorporated by reference from Exhibit 3.1.1 to the Registrant’s registration statement on Form S-1, as amended, filed with the SEC on January 22, 2010 (File No. 333-164491)) |
4.2 |
| Bylaws, as currently in effect (incorporated by reference from Exhibit 3.2.1 to the Registrant’s registration statement on Form S-1, as amended, filed with the SEC on January 22, 2010 (File No. 333-164491)) |
4.3 |
| Registration Statement on Form 8-A (File No. 001-34707), filed by the Registrant with the SEC on April 21, 2010, which is incorporated herein by reference pursuant to Item 3(b) |
4.3.1 |
| Amendment No. 1 to Registration Statement on Form 8-A (File No. 001-34707), filed by the Registrant with the SEC on April 22, 2010, which is incorporated herein by reference pursuant to Item 3(b) |
4.4 |
| Specimen certificate for shares of common stock (incorporated by reference from Exhibit 4.1 to the Registrant’s registration statement on Form S-1, as amended, filed with the SEC on January 22, 2010 (File No. 333-164491)) |
4.5 |
| 2009 Stock Incentive Plan, as amended to date, and forms of stock option agreements (incorporated by reference from Exhibit 10.1 to the Registrant’s registration statement on Form S-1, as amended, filed with the SEC on January 22, 2010 (File No. 333-164491)) |
4.6 |
| Form of Nonstatutory Stock Option Notice (Double Trigger) (incorporated by reference from Exhibit 10.1 to the Registrant’s current report on Form 8-K filed with the SEC on February 28, 2011) |
4.7 |
| Form of Restricted Stock Unit Notice (Double Trigger) and Agreement (incorporated by reference from Exhibit 10.2 to the Registrant’s current report on Form 8-K filed with the SEC on February 28, 2011) |
5.1 | * | Opinion of DLA Piper LLP (US) |
23.1 | * | Consent of DLA Piper LLP (US) (included in Exhibit 5.1) |
23.2 | * | Consent of Independent Registered Public Accounting Firm |
24.1 | * | Power of Attorney (included in the signature page to this registration statement) |
* Filed herewith
Item 9. Undertakings.
(a) The 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 Securities Act of 1933, as amended;
(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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 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;
Paragraphs (a)(1)(i) and (a)(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 SEC by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in the registration statement.
(2) 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 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 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 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 the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the SEC 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.
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 Austin, State of Texas, on this 14th day of March, 2011.
| CONVIO, INC. | |
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| By: | /s/ GENE AUSTIN |
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| Gene Austin | |
| Chief Executive Officer (Principal Executive Officer), | |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each individual whose signature appears below constitutes and appoints Gene Austin and James R. Offerdahl, and each of them, his true and lawful attorneys-in-fact and agents with full power of substitution, 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 all documents in connection therewith, making such changes in this registration statement as such attorneys-in-fact and agents so acting deems appropriate, 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 with respect to the offering of securities contemplated by this registration statement, 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 any of them, or his or their substitute or substitutes, may lawfully do or cause to be done or by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the date indicated.
Signature |
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| Date |
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/s/ GENE AUSTIN |
| Chief Executive Officer (Principal Executive Officer), President and Chairman of the Board of Directors |
| March 14, 2011 |
Gene Austin |
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/s/ JAMES R. OFFERDAHL |
| Chief Financial Officer and Vice President of Administration (Principal Financial and Accounting Officer) |
| March 14, 2011 |
James R. Offerdahl |
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/s/ VINAY K. BHAGAT |
| Director |
| March 14, 2011 |
Vinay K. Bhagat |
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/s/ SHEERAZ D. HAJI |
| Director |
| March 14, 2011 |
Sheeraz D. Haji |
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/s/ WILLIAM G. BOCK |
| Director |
| March 14, 2011 |
William G. Bock |
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/s/ CHRISTOPHER B. HOLLENBECK |
| Director |
| March 14, 2011 |
Christopher B. Hollenbeck |
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/s/ M. SCOTT IRWIN |
| Director |
| March 14, 2011 |
M. Scott Irwin |
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/s/ KRISTEN L. MAGNUSON |
| Director |
| March 14, 2011 |
Kristen L. Magnuson |
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/s/ GEORGE H. SPENCER III |
| Director |
| March 14, 2011 |
George H. Spencer III |
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Index to |
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4.1 |
| Restated Certificate of Incorporation, as currently in effect (incorporated by reference from Exhibit 3.1.1 to the Registrant’s registration statement on Form S-1, as amended, filed with the SEC on January 22, 2010 (File No. 333-164491)) |
4.2 |
| Bylaws, as currently in effect (incorporated by reference from Exhibit 3.2.1 to the Registrant’s registration statement on Form S-1, as amended, filed with the SEC on January 22, 2010 (File No. 333-164491)) |
4.3 |
| Registration Statement on Form 8-A (File No. 001-34707), filed by the Registrant with the SEC on April 21, 2010, which is incorporated herein by reference pursuant to Item 3(b) |
4.3.1 |
| Amendment No. 1 to Registration Statement on Form 8-A (File No. 001-34707), filed by the Registrant with the SEC on April 22, 2010, which is incorporated herein by reference pursuant to Item 3(b) |
4.4 |
| Specimen certificate for shares of common stock (incorporated by reference from Exhibit 4.1 to the Registrant’s registration statement on Form S-1, as amended, filed with the SEC on January 22, 2010 (File No. 333-164491)) |
4.5 |
| 2009 Stock Incentive Plan, as amended to date, and forms of stock option agreements (incorporated by reference from Exhibit 10.1 to the Registrant’s registration statement on Form S-1, as amended, filed with the SEC on January 22, 2010 (File No. 333-164491)) |
4.6 |
| Form of Nonstatutory Stock Option Notice (Double Trigger) (incorporated by reference from Exhibit 10.1 to the Registrant’s current report on Form 8-K filed with the SEC on February 28, 2011) |
4.7 |
| Form of Restricted Stock Unit Notice (Double Trigger) and Agreement (incorporated by reference from Exhibit 10.2 to the Registrant’s current report on Form 8-K filed with the SEC on February 28, 2011) |
5.1 | * | Opinion of DLA Piper LLP (US) |
23.1 | * | Consent of DLA Piper LLP (US) (included in Exhibit 5.1) |
23.2 | * | Consent of Independent Registered Public Accounting Firm |
24.1 | * | Power of Attorney (included in the signature page to this registration statement) |
* Filed herewith