sv8
As
filed with the Securities and Exchange Commission on August 31, 2005
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)
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Delaware
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77-0430924 |
(State of Incorporation)
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(I.R.S. Employer Identification No.) |
2145 Hamilton Avenue
San Jose, California 95125
(Address of principal executive offices)
Shopping.com Ltd. 2003 Omnibus Stock Option and Restricted Stock Incentive Plan
Shopping.com Ltd. 2004 Equity Incentive Plan
(Full title of the plan)
Michael R. Jacobson
Senior Vice President, Legal Affairs, General Counsel and Secretary
eBay Inc.
2145 Hamilton Avenue
San Jose, California 95125
(408) 376-7400
(Name, address, including zip code, and telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed Maximum |
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Proposed Maximum |
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Title of Securities |
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Offering |
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Aggregate |
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Amount of |
to be Registered |
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Amount to be Registered (1) |
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Price per Share (2) |
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Offering Price (2) |
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Registration Fee |
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Common Stock, par value
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1,036,829(3)
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$7.16
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$7,423,695.64
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$873.77 |
$0.001 per share
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1,347,070(4)
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$36.48
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$49,141,113.60
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$5,783.91 |
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Total
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2,383,899
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$43.64
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$56,564,809.24
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$6,657.68 |
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(1) |
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Pursuant to the Agreement and Plan of Merger, dated as of June 1, 2005, among Shopping.com Ltd., eBay Inc. and
Harbour Acquisition Corp. (the Merger Agreement), eBay assumed all of the outstanding options to purchase Common
Stock of Shopping.com Ltd. under the plans referred to above, and such options become exercisable to purchase
shares of eBay Inc. Common Stock, with appropriate adjustments to the number of shares and exercise price of each
assumed option in accordance with the Merger Agreement. |
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Pursuant to Rule 416(a), this registration statement shall also cover any additional shares of common stock which
become issuable under the Shopping.com Ltd. 2003 Omnibus Stock Option and Restricted Stock Incentive Plan and the
Shopping.com Ltd. 2004 Equity Incentive Plan by reason of any stock dividend, stock split, recapitalization or
other similar transaction effected without the receipt of consideration which results in an increase or decrease
in the number of outstanding shares of our common stock. |
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(2) |
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Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) under
the Securities Act of 1933, as amended. The offering price per share and aggregate offering price are based upon
weighted average exercise price for shares subject to outstanding options granted pursuant to the Shopping.com
Ltd. 2003 Omnibus Stock Option and Restricted Stock Incentive Plan and the Shopping.com Ltd. 2004 Equity Incentive
Plan. |
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(3) |
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Shares subject to outstanding options as of August 30, 2005 under the Shopping.com Ltd. 2003 Omnibus Stock Option
and Restricted Stock Incentive Plan. |
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(4) |
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Shares subject to outstanding options as of August 30, 2005 under the Shopping.com Ltd. 2004 Equity Incentive Plan. |
TABLE OF CONTENTS
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 DOCUMENTS BY REFERENCE
The following documents filed by eBay Inc. (the Company) with the Securities and Exchange
Commission (the Commission) are incorporated by reference into this registration statement:
(a) Our latest annual report on Form 10-K for the fiscal year ended December 31, 2004, filed
on February 28, 2005, filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of
1934, as amended (the Exchange Act).
(b)(1) Our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2005, filed
on April 27, 2005; and our Quarterly Report on Form 10-Q for the quarterly period ended June 30,
2005, filed on July 27, 2005.
(b)(2) Our Current Reports on Form 8-K filed on January 3, 2005; January 19, 2005; February 7,
2005; February 8, 2005; February 24, 2005; March 10, 2005; March 17, 2005; March 21, 2005; April
20, 2005; April 27, 2005 (as amended by our Amendment No. 1 on Form 8-K/A filed on June 27, 2005);
June 2, 2005; July 20, 2005; and July 27, 2005.
(c) The description of the Companys common stock which is contained in a Registration
Statement on Form 8-A filed 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 subsequently filed by the Company 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.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by Section 145 of the Delaware General Corporation Law (the DGCL), the
Companys Amended and Restated Bylaws provide that (i) the Company is required to indemnify its
directors and officers to the fullest extent permitted by the DGCL, (ii) the Company may, in its
discretion, indemnify other persons as set forth in the DGCL, (iii) to the fullest extent permitted
by the DGCL, the Company is required to advance all expenses incurred by its directors and officers
in connection with a legal proceeding (subject to certain exceptions), (iv) the rights conferred in
the Bylaws are not exclusive, (v) the Company is authorized to enter into indemnification
agreements with its directors, officers, employees and agents and (vi) the Company may not
retroactively amend the Bylaws provisions relating to indemnity.
The Company has entered into agreements with its directors and executive officers that require
the Company to indemnify such persons against expenses, judgments, fines, settlements and other
amounts that such person becomes legally obligated to pay (including expenses of a derivative
action) in connection with any proceeding, whether actual or threatened, to which any such person
may be made a party by reason of the fact that such person is or was a director or officer of the
Company 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
Company. The indemnification agreements also set forth certain procedures that will apply in the
event of a claim for indemnification thereunder.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The following exhibits are filed as part of this registration statement.
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Exhibit |
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Number |
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Description |
4.1
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Shopping.com Ltd. 2003 Omnibus Stock Option and Restricted Stock Incentive Plan. |
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4.2
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Shopping.com Ltd. 2004 Equity Incentive Plan. |
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5.1
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Opinion of Cooley Godward LLP. |
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23.1
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Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm. |
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23.2
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Consent of Cooley Godward LLP (included in Exhibit 5.1 to this registration statement). |
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24.1
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Power of Attorney (included on the signature page of this registration statement). |
II-1
ITEM 9. UNDERTAKINGS
1. |
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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 of 1933, as
amended (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) 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.
(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 with or furnished to the Commission by the registrant pursuant to Section 13 or 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 therein, 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.
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The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrants annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act (and, where applicable, each filing of an employee
benefit plans 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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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
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. |
II-2
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 Jose,
State of California, on August 30, 2005.
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eBay Inc. |
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/s/ MARGARET C. WHITMAN |
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Margaret C. Whitman |
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President, Chief Executive Officer & Director |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes
and appoints Margaret C. Whitman, Michael R. Jacobson and Rajiv Dutta, and each or any one of them,
his or her true and lawful attorney-in-fact and agents, with full power of substitution and
resubstitution, for him and her 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,
and to file the same, with all exhibits thereto, and other 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 connection therewith, 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 her or their substitute or substitutes, may lawfully do or cause to be done
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 dates indicated.
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Signature |
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Title |
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Date |
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President, Chief Executive |
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August 30, 2005 |
Margaret C. Whitman
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Officer and Director
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Senior Vice President and Chief
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August 30, 2005 |
Rajiv Dutta
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Financial Officer (Principal |
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Financial Officer) |
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Vice President,
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August 30, 2005 |
Douglas Jeffries
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Chief Accounting Officer |
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(Principal Accounting Officer) |
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Founder, Chairman of the Board
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Pierre M. Omidyar
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And Director |
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/s/ FRED D. ANDERSON |
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Fred D. Anderson
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Director
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August 30, 2005 |
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/s/ EDWARD W. BARNHOLT |
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Edward W. Barnholt
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Director
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August 30, 2005 |
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/s/ PHILIPPE BOURGUIGNON |
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Philippe Bourguignon
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Director
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August 30, 2005 |
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/s/ SCOTT D. COOK |
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Scott D. Cook
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Director
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August 30, 2005 |
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/s/ WILLIAM C. FORD, JR. |
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William C. Ford, Jr.
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Director
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August 30, 2005 |
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/s/ ROBERT C. KAGLE |
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Robert C. Kagle
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Director
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August 30, 2005 |
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/s/ DAWN G. LEPORE |
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Dawn G. Lepore
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Director
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August 30, 2005 |
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/s/ RICHARD T. SCHLOSBERG, III |
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Richard T. Schlosberg, III
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Director
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August 30, 2005 |
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/s/ THOMAS J. TIERNEY |
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Thomas J. Tierney
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Director
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August 30, 2005 |
EXHIBIT INDEX
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Exhibit |
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Number |
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Description |
4.1
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Shopping.com Ltd. 2003 Omnibus Stock Option and Restricted Stock Incentive Plan. |
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4.2
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Shopping.com Ltd. 2004 Equity Incentive Plan. |
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5.1
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Opinion of Cooley Godward LLP. |
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23.1
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Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm. |
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23.2
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Consent of Cooley Godward LLP (included in Exhibit 5.1 to this registration statement). |
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24.1
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Power of Attorney (included on the signature page of this registration statement). |