As filed with the Securities and Exchange Commission on September 24, 1998
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EBAY INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 77-0430924
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
2005 HAMILTON AVENUE, SUITE 350
SAN JOSE, CALIFORNIA 95125
(Address of Principal Executive Offices, including Zip Code)
1996 STOCK OPTION PLAN
1997 STOCK OPTION PLAN
1998 EQUITY INCENTIVE PLAN
1998 DIRECTORS STOCK OPTION PLAN
1998 EMPLOYEE STOCK PURCHASE PLAN
NON-PLAN STOCK OPTION GRANTS
(Full Title of the Plans)
GARY F. BENGIER
CHIEF FINANCIAL OFFICER AND VICE PRESIDENT OPERATIONS
EBAY INC.
2005 HAMILTON AVENUE, SUITE 350
SAN JOSE, CALIFORNIA 95125
(408) 369-4830
(Name, Address and Telephone Number of Agent For Service)
COPIES TO:
Laird H. Simons III, Esq.
Jeffrey R. Vetter, Esq.
Tyler R. Cozzens, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, CA 94306
CALCULATION OF REGISTRATION FEE
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AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED SHARE PRICE FEE
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Common Stock, $0.001 par value 5,007,748 (1) $18.00 (2) $ 90,139,464 (2) $26,592
Common Stock, $0.001 par value 3,124,914 (3) 10.88 (4) 33,999,065 10,030
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TOTAL 8,132,662 $124,138,529 $36,622
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(1) Shares available for grant as of September 24, 1998 under the 1998 Equity
Incentive Plan and the 1998 Directors Stock Option Plan and available for
issuance under the 1998 Employee Stock Purchase Plan.
(2) Estimated as of September 23, 1998 pursuant to Rule 457(c) solely for the
purpose of calculating the registration fee.
(3) Shares subject to outstanding options as of September 24, 1998 under the
1996 Stock Option Plan and the 1997 Stock Option Plan and pursuant to Non-
Plan Stock Option Grants.
(4) Weighed average exercise price for such outstanding options pursuant to Rule
457(h)(1).
EBAY INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
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The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The Registrant's prospectus filed pursuant to Rule 424(b) under
the Securities Act of 1933, as amended (the "Securities Act"),
that contains audited financial statements of the Registrant for
the years ended December 31, 1996 and 1997.
(b) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed under
Section 12(g) of 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 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 deregisters 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.
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Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
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Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS AND LIMITATION OF LIABILITY.
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Section 145 of the Delaware General Corporation Law ("DGCL") authorizes
a court to award, or a corporation's board of directors to grant, indemnity to
directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act.
As permitted by the DGCL, the Registrant's Amended and Restated
Certificate of Incorporation, which will become effective upon the closing of
this offering, includes a provision that eliminates the personal liability of
its directors for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
Registrant or its stockholders, (ii) for acts or omissions not in good faith or
that involve intentional misconduct or a knowing violation of law, (iii) under
section 174 of the DGCL (regarding unlawful dividends and stock purchases) or
(iv) for any transaction from which the director derived an improper personal
benefit.
As permitted by the DGCL, the Registrant's Amended and Restated Bylaws,
which will become effective upon the closing of this offering, provide that (i)
the Registrant is required to indemnify its directors and officers to the
fullest extent permitted by the DGCL, subject to certain very limited
exceptions, (ii) the Registrant is required to advance expenses, as incurred, to
its directors and officers in connection with a legal proceeding to the fullest
extent permitted by the DGCL, subject to certain very limited exceptions and
(iii) the rights conferred in the Amended and Restated Bylaws are not exclusive.
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The Registrant has entered into Indemnity Agreements with each of its
current directors and officers to give such directors and officers additional
contractual assurances regarding the scope of the indemnification set forth in
the Registrant's Amended and Restated Certificate of Incorporation and Amended
and Restated Bylaws and to provide additional procedural protections. At
present, there is no pending litigation or proceeding involving a director,
officer or employee of the Registrant regarding which indemnification is sought,
nor is the Registrant aware of any threatened litigation that may result in
claims for indemnification.
Reference is also made to Section 8 of the Underwriting Agreement
relating to Registrant's initial public offering, effected pursuant to a
Registration Statement on Form S-1 (Commission File No. 333-59097), which
provides for the indemnification of officers, directors and controlling persons
of the Registrant against certain liabilities. The indemnification provision in
the Registrant's Amended and Restated Certificate of Incorporation, Amended and
Restated Bylaws and the Indemnity Agreements entered into between the Registrant
and each of its directors and officers may be sufficiently broad to permit
indemnification of the Registrant's directors and officers for liabilities
arising under the Securities Act.
The Registrant, with approval by the Registrant's Board of Directors,
expects to obtain directors' and officers' liability insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
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Not applicable.
ITEM 8. EXHIBITS.
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4.01 Registrant's Certificate of Incorporation (incorporated herein by
reference to Exhibit 3.01 of Registrant's Registration Statement
on Form S-1, File No. 333-59097, originally filed with the
Commission on July 15, 1998, as subsequently amended (the "Form S-
1")).
4.02 Registrant's Certificate of Designation of Preferred Stock
(incorporated herein by reference to Exhibit 3.02 of the Form S-
1).
4.03 Form of Registrant's Certificate of Amendment of Certificate of
Incorporation to be effective upon the closing of Registrant's
initial public offering (incorporated herein by reference to
Exhibit 3.03 of the Form S-1).
4.04 Form of Registrant's Amended and Restated Certificate of
Incorporation of the Registrant (incorporated herein by reference
to Exhibit 3.04 of the Form S-1).
4.05 Registrant's Bylaws (incorporated by reference to Exhibit 3.05 of
the Form S-1).
4.06 Form of Registrant's Amended and Restated Bylaws to be effective
upon the closing of Registrant's initial public offering
(incorporated herein by reference to Exhibit 3.06 of the Form S-
1).
4.07 Registrant's 1996 Stock Option Plan and related documents
(incorporated herein by reference to Exhibit 10.02 of the Form S-
1).
4.08 Registrant's 1997 Stock Option Plan and related documents
(incorporated herein by reference to Exhibit 10.03 of the Form S-
1).
4.09 Registrant's 1998 Equity Incentive Plan and related documents
(incorporated herein by reference to Exhibit 10.04 of the Form S-
1).
4.10 Registrant's 1998 Directors Stock Option Plan and related
documents (incorporated herein by reference to Exhibit 10.05 of
the Form S-1).
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4.11 Registrant's 1998 Employee Stock Purchase Plan (incorporated
herein by reference to Exhibit 10.06 of the Form S-1).
4.12 Form of Registrant's Non-Plan Stock Option Agreement.
4.13 Investor Rights Agreement, dated June 20, 1997, between Registrant
and certain stockholders named therein (incorporated herein by
reference to Exhibit 4.02 of the Form S-1).
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, independent accountants.
24.01 Power of Attorney (see page 6).
Item 9. UNDERTAKINGS.
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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;
(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) above do not
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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 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.
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(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 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.
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4
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 provisions discussed in Item 6 hereof, 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 hereby, 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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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature appears
below constitutes and appoints Margaret C. Whitman and Gary F. Bengier, and each
of them, 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 any and all amendments (including post-effective
amendments) to this Registration Statement on Form S-8, and to file the same
with all exhibits thereto and all documents 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 and about the
premises, as fully to all intents and purposes as he or she 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 her or their substitute or 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
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 Jose, State of California, on this 24th day of
September, 1998.
eBAY INC.
By: /s/ Margaret C. Whitman
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Margaret C. Whitman,
President and Chief Executive 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
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PRINCIPAL EXECUTIVE OFFICER:
/s/ Margaret C. Whitman President, Chief Executive Officer and September 24, 1998
- ---------------------------------------- Director
Margaret C. Whitman
PRINCIPAL FINANCIAL OFFICER
AND PRINCIPAL ACCOUNTING OFFICER:
/s/ Gary F. Bengier Chief Financial Officer and Vice September 24, 1998
- ---------------------------------------- President Operations
Gary F. Bengier
ADDITIONAL DIRECTORS
Director
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Pierre M. Omidyar
/s/ Scott D. Cook Director September 24, 1998
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Scott D. Cook
/s/ Robert C. Kagle Director September 24, 1998
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Robert C. Kagle
/s/ Howard D. Schultz Director September 24, 1998
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Howard D. Schultz
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EXHIBIT INDEX
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Exhibit No. Description
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4.01 Registrant's Certificate of Incorporation (incorporated herein by
reference to Exhibit 3.01 of Registrant's Registration Statement
on Form S-1, File No. 333-59097, originally filed with the
Commission on July 15, 1998, as subsequently amended (the "Form S-
1")).
4.02 Registrant's Certificate of Designation of Preferred Stock
(incorporated herein by reference to Exhibit 3.02 of the Form S-
1).
4.03 Form of Registrant's Certificate of Amendment of Certificate of
Incorporation to be effective upon the closing of Registrant's
initial public offering (incorporated herein by reference to
Exhibit 3.03 of the Form S-1).
4.04 Form of Registrant's Amended and Restated Certificate of
Incorporation of the Registrant (incorporated herein by reference
to Exhibit 3.04 of the Form S-1).
4.05 Registrant's Bylaws (incorporated by reference to Exhibit 3.05 of
the Form S-1).
4.06 Form of Registrant's Amended and Restated Bylaws to be effective
upon the closing of Registrant's initial public offering
(incorporated herein by reference to Exhibit 3.06 of the Form S-
1).
4.07 Registrant's 1996 Stock Option Plan and related documents
(incorporated herein by reference to Exhibit 10.02 of the Form S-
1).
4.08 Registrant's 1997 Stock Option Plan and related documents
(incorporated herein by reference to Exhibit 10.03 of the Form S-
1).
4.09 Registrant's 1998 Equity Incentive Plan and related documents
(incorporated herein by reference to Exhibit 10.04 of the Form S-
1).
4.10 Registrant's 1998 Directors Stock Option Plan and related
documents (incorporated herein by reference to Exhibit 10.05 of
the Form S-1).
4.11 Registrant's 1998 Employee Stock Purchase Plan (incorporated
herein by reference to Exhibit 10.06 of the Form S-1).
4.12 Form of Registrant's Non-Plan Stock Option Agreement.
4.13 Investor Rights Agreement, dated June 20, 1997, between Registrant
and certain stockholders named therein (incorporated herein by
reference to Exhibit 4.02 of the Form S-1).
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, independent accountants.
24.01 Power of Attorney (see page 6).
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