As filed with the Securities and Exchange Commission on July 1, 1999
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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XOOM.COM, INC.
(Exact name of Registrant as Specified in Its Charter)
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Delaware 88-0361536
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(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
300 Montgomery Street, Suite 300
San Francisco, California 94104
(Address of Principal Executive Offices)
Paralogic Software Corporation 1998 Stock Incentive Plan
(Full Title of the Plan)
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Chris Kitze
Chairman
XOOM.com, Inc.
300 Montgomery Street, Suite 300
San Francisco, California 94104
(Name and Address of Agent for Service)
(415) 288-2500
(Telephone Number, Including Area Code, of Agent For Service)
Copies to:
Bruce Alan Mann, Esq. Raj Aji
Morrison & Foerster LLP XOOM.com, Inc.
425 Market Street 300 Montgomery Street, Suite 300
San Francisco, California 94105 San Francisco, California 94104
(415) 268-7000 (415) 288-2500
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Securities Amount Maximum Maximum Amount of
to be Registered to be Offering Price Aggregate Offering Registration
Registered(1) Per Share(2) Price(3) Fee
- ------------------------------------------------------------------------------------------------------------------------------
Common Stock, $.0001 82,733 $ 0.56 $ 46,330.48 $ 12.88
par value per share
Common Stock, $.0001 12,001 $34.47 $413,674.47 $115.00
par value per share
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(1) Represents the shares originally issued under the Paralogic Software
Corporation 1998 Stock Incentive Plan, as amended (the "Assumed Options"),
which were assumed in connection with the Registrant's acquisition of
Paralogic Software Corporation (the "Merger").
(2) Represents the maximum exercise price per share as converted pursuant to the
terms of the Merger.
(3) Estimated in accordance with Rule 457(h) under the Securities Act of 1933,
as amended. Computation based upon the exercise price of the options, all
of which were previously granted and as converted pursuant to the terms of
the Merger.
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PART I
INFORMATION REQUIRED IN THE
SECTION 10 (a) PROSPECTUS
The documents containing the information specified in Part 1 of Form S-8 (plan
information and registrant information and employee plan annual information)
will be sent or given to employees as specified by Securities and Exchange
Commission Rule 428(b)(1). Such documents need not be filed with the Securities
and Exchange Commission either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424. These documents
and the documents incorporated by reference in this Registration Statement
pursuant to Item 3 of Form S-8 (Part II hereof), taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act of
1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by XOOM.com, Inc. (the "Registrant") with the
Securities and Exchange Commission (the "Commission") are incorporated by
reference herein:
(a) The Registrant's Current Report on Form 8-K, filed on June 16, 1999.
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1999, filed on May 25, 1999, pursuant to Section 13(a) of the
Exchange Act.
(c) The Registrant's Current Report on Form 8-K, filed on May 21, 1999.
(d) The Registrant's Current Report on Form 8-K, filed on May 6, 1999.
(e) The Registrant's Current Report on Form 8-K, filed on May 5, 1999.
(f) The Registrant's latest Annual Report on Form 10-K for the fiscal year
ended December 31, 1998, filed on March 30, 1999, pursuant to Section 13(a) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act").
(g) The description of the Registrant's Common Stock which is contained in its
Registration Statement on Form 8-A filed under the Exchange Act on December 7,
1998, including any amendment or report filed for the purpose of updating such
description.
All reports and definitive proxy or information statements filed pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange 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
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been sold or which deregisters 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.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is deemed to
be incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Under Section 145 of the General Corporation Law of the State of Delaware, the
Registrant has broad powers to indemnify its directors and officers against
liabilities they may incur in such capacities, including liabilities under the
Securities Act. Article VI of the Registrant's Bylaws also provides for
mandatory indemnification of its directors and executive officers, and
permissive indemnification of its employees and agents, to the fullest extent
permissible under Delaware law.
Article Seven of the Registrant's Amended and Restated Certificate of
Incorporation provides that the liability of its directors for monetary damages
shall be eliminated to the fullest extent permissible under Delaware law.
Pursuant to Delaware law, this includes elimination of liability for monetary
damages for breach of the directors' fiduciary duty of care to the Registrant
and its stockholders. These provisions do not eliminate the directors' duty of
care and, in appropriate circumstances, equitable remedies such as injunctive or
other forms of non-monetary relief will remain available under Delaware law. In
addition, each director will continue to be subject to liability for breach of
the director's duty of loyalty to the Registrant, for acts or omissions not in
good faith or involving intentional misconduct, for knowing violations of law,
for any transaction from which the director derived an improper personal
benefit, and for payment of dividends or approval of stock repurchases or
redemptions that are unlawful under Delaware law. The provision also does not
affect a director's responsibilities under any other laws, such as the federal
securities laws or state or federal environmental laws.
The Registrant has entered into agreements with its directors and certain of
its executive officers that require the Registrant to indemnify such persons
against expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred (including expenses of a derivative action) in connection
with any proceeding, whether actual or threatened, to which any
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such person may be made a party by reason of the fact that such person is or was
a director or officer of the Registrant or any of its affiliated enterprises,
provided such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the Registrant and,
with respect to any criminal proceeding, had no reasonable cause to believe his
or her conduct was unlawful. The indemnification agreements also set forth
certain procedures that will apply in the event of a claim for indemnification
thereunder.
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.
The Registrant has obtained a policy of directors' and officers' liability
insurance that insures the Company's directors and officers against the cost of
defense, settlement or payment of a judgment under certain circumstances.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Restated Certificate of Incorporation of the Registrant (incorporated by
reference to Exhibit 3.1 to the Registrant's Registration Statement on
Form S-1 (Commission File No. 333-62395) which became effective on
December 8, 1998 (the "Registration Statement on Form S-1")).
4.2 Amended and Restated Bylaws of the Registrant (incorporated by reference
to Exhibit 3.2 to the Registration Statement on Form S-1).
5.1 Opinion of Morrison & Foerster LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Morrison & Foerster LLP (contained in Exhibit 5.1).
24.1 Power of Attorney (see signature page of this Registration Statement).
99.1 Paralogic Software Corporation 1998 Stock Incentive Plan, as amended,
including forms of agreements thereunder.
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99.1 Paralogic Software Corporation 1998 Stock Incentive Plan, as amended,
including forms of agreements thereunder.
Item 9. Undertakings.
(a) 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:
(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 t he 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 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 this Registration Statement or any
material change to such information in the Registration Statement;
provided, however, that 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
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this 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 upon the termination of
the Paralogic Software Corporation 1998 Stock Incentive Plan, as amended.
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(b) 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 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 indemnity provisions summarized in Item 6 above 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 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.
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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 July 1, 1999.
XOOM.COM, INC.
By: /s/ Laurent Massa
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Laurent Massa
Chief Executive Officer
and President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints, severally and not jointly, Chris Kitze, Laurent
Massa, and John Harbottle, with full power to act alone, as his or her true and
lawful attorney-in-fact, with the power of substitution, for and in such
person's 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 all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
each said attorney-in-fact full power and authority to do and perform each and
every act and thing requisite and necessary to be done as fully to all intents
and purposes as he or she might or could do in person, hereby ratifying and
confirming all that each said attorney-in-fact 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
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/s/ Laurent Massa Principal Executive Officer and July 1, 1999
- ---------------------------------- Director
Laurent Massa
/s/ John Harbottle Principal Financial and Accounting July 1, 1999
- ---------------------------------- Officer
John Harbottle
/s/ Chris Kitze Chairman of the Board July 1, 1999
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Chris Kitze
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/s/ Bob Ellis Director July 1, 1999
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Bob Ellis
/s/ James J. Heffernan Director July 1, 1999
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James J. Heffernan
/s/ Jeffrey Ballowe Director July 1, 1999
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Jeffrey Ballowe
/s/ Philip Schlein Director July 1, 1999
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Philip Schlein
/s/ Robert C. Harris, Jr. Director July 1, 1999
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Robert C. Harris, Jr.
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EXHIBIT INDEX
Exhibit
Number Description
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4.1 Restated Certificate of Incorporation of the Registrant (incorporated by
reference to Exhibit 3.1 to the Registrant's Registration Statement on
Form S-1 (Commission File No. 333-62395) which became effective on
December 8, 1998 (the "Registration Statement on Form S-1")).
4.2 Amended and Restated Bylaws of the Registrant (incorporated by reference
to Exhibit 3.2 to the Registration Statement on Form S-1).
5.1 Opinion of Morrison & Foerster LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Morrison & Foerster LLP (contained in Exhibit 5.1).
24.1 Power of Attorney (see signature page of this Registration Statement).
99.1 Paralogic Software Corporation 1998 Stock Incentive Plan, as amended,
including forms of agreements thereunder.