As filed with the Securities and Exchange Commission on September 22, 1999
Registration No. 333-
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.)
2125 Hamilton Avenue
San Jose, California 95125
(Address of principal executive offices)
BILLPOINT, INC. 1999 STOCK PLAN
(Full title of the plan)
Gary F. Bengier
Chief Financial Officer and Vice President Operations
eBay Inc.
2125 Hamilton Avenue
San Jose, California 95125
(408) 558-7400
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Securities Proposed Maximum Offering Proposed Maximum Aggregate Amount of
to be Registered Amount to be Registered Price per Share(1) Offering Price(1) Registration Fee
----------------------- -------------------------- ----------------------------- ----------------
Common Stock 99,478 shares $2.20 $218,852 $60.84
(1) The offering price per share and the aggregate offering price are based upon
the exercise price for shares subject to outstanding options granted by
Billpoint, Inc.
Part I. INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information
The document(s) containing the information specified in Item 1 will be
sent or given to employees as specified in Rule 428(b)(1) and are not
required to be filed as part of this Registration Statement.
Item 2. Registrant Information and Employee Plan Annual Information
The document(s) containing the information specified in Item 2 will be
sent or given to employees as specified in Rule 428(b)(1) and are not
required to be filed as part of this Registration Statement.
Part II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents filed with the Commission are incorporated
herein by reference:
(i) the latest Annual Report of eBay Inc. (the "Registrant") on
Form 10-K405 for the fiscal year ended December 31, 1998 filed
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act");
(ii) all other reports filed by the Registrant pursuant to Sections
13(a) or 15(d) of the Exchange Act, since the end of the fiscal year
covered by the Annual Report on Form 10-K405 referred to in clause
(i) above; and
(iii) the description of the Registrant's Common Stock which is
incorporated by reference in the Registrant's Registration Statement
on Form 8-A (File No. 000-24821) filed on August 20, 1998 under the
Exchange Act, including any amendment or report filed for the
purpose of updating such description.
All reports and other documents filed by the Registrant after the
date of this Registration Statement pursuant to Sections 13(a),
13(c), 14, and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment (that indicates all securities offered have
been sold or deregisters all securities then remaining unsold),
shall be deemed to be incorporated by reference in 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
Not Applicable.
Item 6. Indemnification of Directors and Officers
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 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 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.
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), and to Section 8 of the Underwriting Agreement relating to
Registrant's April 1999 public offering effected pursuant to a
Registration Statement on Form S-1 (Commission File No. 333-75009),
each of 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, has obtained directors' and officers' liability
insurance.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The following exhibits are filed as part of this Registration Statement.
Exhibit No. Description
-------------------------
4.01 Registrant's Amended and Restated Certificate of Incorporation
(incorporated herein by reference to Exhibit 3.04 of the 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 Certificate of Amendment of Certificate of Incorporation of eBay
Inc.
4.03 Registrant's Amended and Restated Bylaws effective upon the
closing of Registrant's initial public offering (incorporated
herein by reference to Exhibit 3.06 of the Form S-1).
4.04 Billpoint, Inc. 1999 Stock Plan and form of Stock Option
Agreement.
5.01 Opinion of Cooley Godward LLP.
23.01 Consent of Cooley Godward LLP (included in Exhibit 5.01).
23.02 Consent of PricewaterhouseCoopers LLP, independent accountants.
24.01 Power of Attorney (see page four).
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;
(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 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.
(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.
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.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature appears
below constitutes and appoints Margaret C. Whitman, Michael R. Jacobson 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 20th day of
September, 1999.
eBAY INC.
By: /s/ Margaret C. Whitman
-----------------------------------
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
--------- ----- ----
PRINCIPAL EXECUTIVE OFFICER:
/s/ Margaret C. Whitman President, Chief Executive Officer and September 20, 1999
- -----------------------
Margaret C. Whitman Director
PRINCIPAL FINANCIAL OFFICER
AND PRINCIPAL ACCOUNTING OFFICER:
/s/ Gary F. Bengier Chief Financial Officer and Vice September 20, 1999
- -------------------
Gary F. Bengier President Operations
ADDITIONAL DIRECTORS
/s/ Pierre M. Omidyar Director September 20, 1999
- ---------------------
Pierre M. Omidyar
/s/ Scott D. Cook Director September 20, 1999
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Scott D. Cook
/s/ Robert C. Kagle Director September 20, 1999
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Robert C. Kagle
/s/ Howard D. Schultz Director September 20, 1999
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Howard D. Schultz
EXHIBIT INDEX
Exhibit
- -------
4.02 Certificate of Amendment of Certificate of Incorporation of eBay Inc.
4.04 Billpoint, Inc. 1999 Stock Plan and form of Stock Option Agreement.
5.01 Opinion of Cooley Godward LLP.
23.01 Consent of Cooley Godward LLP (included in Exhibit 5.01).
23.02 Consent of PricewaterhouseCoopers LLP, independent accountants.
24.01 Power of Attorney (see page four).