Securities Registration: Employee Benefit Plan (s-8)
August 26 2016 - 4:18PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on August 26, 2016
Registration No. 333-
UNITED STATES
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
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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2065 Hamilton Avenue
San Jose, California 95125
(Address of principal executive offices)
eBay Inc.
2008 Equity Incentive Award Plan, as amended and restated
(Full title of the plan)
Marie Oh Huber
Senior
Vice President, Legal Affairs, General Counsel and Secretary
eBay Inc.
2065 Hamilton Avenue
San
Jose, California 95125
(408) 376-7400
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Indicate by a check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act (Check one):
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Large accelerated filer
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x
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Accelerated filer
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¨
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Non-accelerated filer
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¨
(Do not check if a smaller reporting company)
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Smaller reporting company
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¨
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CALCULATION OF REGISTRATION FEE
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Title of
Securities to be Registered
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Amount
to be
Registered
(1)
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Proposed
Maximum
Offering Price
per
Share (2)
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Proposed
Maximum
Aggregate
Offering Price (2)
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Amount of
Registration Fee
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Common Stock, par value $0.001 per share
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50,000,000 (3)
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$30.51
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$1,525,500,000
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$ 153,617.85
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(1)
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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 common stock which become issuable under the
eBay Inc. 2008 Equity Incentive Award Plan, as amended and restated, by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration that results in an increase or decrease in
the number of outstanding shares of the registrants 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. The offering price per share and aggregate offering price are based upon the average
of the high and low prices of the registrants common stock on August 22, 2016 as reported on the Nasdaq Global Select Market for an additional 50,000,000 shares of common stock available for grant pursuant to the eBay Inc. 2008 Equity
Incentive Award Plan, as amended and restated.
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(3)
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Represents additional shares of common stock that are available for grant under the eBay Inc. 2008 Equity Incentive Award Plan, as amended and restated, as approved by the registrants stockholders at the
registrants Annual Meeting of Stockholders held on April 27, 2016.
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EXPLANATORY NOTE
eBay Inc. (the Company) is registering an additional 50,000,000 shares of common stock for issuance under the eBay Inc. 2008
Equity Incentive Award Plan, as amended and restated (the Plan), with the filing of this registration statement on Form S-8. The Companys stockholders approved the addition of these shares to the Plan at the Companys Annual
Meeting of Stockholders held on April 27, 2016.
P
ART
I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
I
TEM
1.
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P
LAN
I
NFORMATION
*
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I
TEM
2.
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R
EGISTRANT
I
NFORMATION
AND
E
MPLOYEE
P
LAN
A
NNUAL
I
NFORMATION
*
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*
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The prospectus containing information required by Part I of Form S-8 and related to this registration statement are omitted from this registration statement in accordance with the note to Part I of Form S-8. The Company
will send or give to each participant in the Plan a copy of the prospectus or documents containing information specified in Part I of Form S-8, as specified by Rule 428(b)(1) of the Securities Act. In accordance with the rules and regulations of the
Securities and Exchange Commission (the Commission), the prospectus for the Plan is not being filed with or included in this registration statement. The prospectus for the Plan and the documents incorporated by reference into this
registration statement pursuant to Item 3 of Part II of this registration statement, taken together, each constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
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P
ART
II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
I
TEM
3.
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I
NCORPORATION
OF
D
OCUMENTS
BY
R
EFERENCE
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The following documents filed by the Company with the Commission (Commission File Nos. 000-24821 and 001-37713) are incorporated by reference
into this registration statement:
(a)
The Companys latest annual report on Form 10-K for the fiscal year ended
December 31, 2015, filed with the Commission on February 1, 2016, as amended on February 22, 2016, which includes audited financial statements for the Companys for the fiscal year ended December 31, 2015;
(b)(1)
The Companys quarterly report on Form 10-Q for the quarterly period ended March 31, 2016, filed with the Commission
on April 27, 2016, and Companys quarterly report on Form 10-Q for the quarterly period ended June 30, 2016, filed with the Commission on July 21, 2016;
(b)(2)
The Companys current reports on Form 8-K filed with the Commission on February 29, 2016, March 9,
2016, March 18, 2016, April 27, 2016 and June 21, 2016; and
(c)
The description of the
Companys common stock, which is contained in a registration statement on Form 8-A filed with the Commission on August 20, 1998, under 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 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 in this registration statement and to be a part hereof from the date of the filing of such documents.
Notwithstanding the foregoing provisions of this Item 3, no document, or portion of or exhibit to a document, that is
furnished to (rather than filed with) the Commission shall be incorporated or deemed to be incorporated by reference in this registration statement.
I
TEM
4.
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D
ESCRIPTION
OF
S
ECURITIES
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Not applicable.
I
TEM
5.
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I
NTERESTS
OF
N
AMED
E
XPERTS
AND
C
OUNSEL
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Not applicable.
I
TEM
6.
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I
NDEMNIFICATION
OF
D
IRECTORS
AND
O
FFICERS
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As permitted by Section 145 of the Delaware General Corporation Law (the DGCL), the Companys Amended and Restated Bylaws
(the Bylaws) provide that (i) the Company is required to indemnify its directors and officers to the fullest extent permitted by the DGCL; provided, however, that the Company is required to provide indemnification with respect to a
proceeding (or part thereof) initiated by one of such persons only if the proceeding (or part thereof) is authorized by the Companys board of directors, (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.
I
TEM
7.
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E
XEMPTION
FROM
R
EGISTRATION
C
LAIMED
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Not applicable.
The following exhibits are filed as part of this registration
statement.
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Exhibit
Number
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Description
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5.1
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Opinion of Sidley Austin 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 Sidley Austin 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).
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99.1
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eBay Inc. 2008 Equity Incentive Award Plan, as amended and restated.*
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Filed as an exhibit to the Companys Current Report on Form 8-K filed with the Commission on April 27, 2016 and incorporated herein by reference.
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1.
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;
(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.
2.
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 herein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
3.
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.
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 26, 2016.
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eBay Inc.
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/s/ Devin N. Wenig
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Devin N. Wenig
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President and Chief Executive Officer
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POWER OF ATTORNEY
K
NOW
A
LL
P
ERSONS
B
Y
T
HESE
P
RESENTS
,
that each
person whose signature appears below constitutes and appoints Devin N. Wenig, Scott F. Schenkel, Marie Oh Huber and Brian J. Doerger, 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 or 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 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.
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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/s/ Devin N. Wenig
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President, Chief Executive
Officer and Director
(Principal
Executive Officer)
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August 26, 2016
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Devin N. Wenig
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/s/ Scott F. Schenkel
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Senior Vice President, Finance
and Chief Financial Officer
(Principal Financial Officer)
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August 26, 2016
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Scott F. Schenkel
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/s/ Brian J. Doerger
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Vice President, Chief Accounting
Officer (Principal Accounting
Officer)
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August 26, 2016
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Brian J. Doerger
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/s/ Thomas J. Tierney
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Chairman of the Board
and Director
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August 26, 2016
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Thomas J. Tierney
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/s/ Fred D. Anderson
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Director
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August 26, 2016
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Fred D. Anderson
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Signature
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Title
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Date
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/s/ Edward W. Barnholt
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Director
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August 26, 2016
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Edward W. Barnholt
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/s/ Anthony J. Bates
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Director
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August 26, 2016
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Anthony J. Bates
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/s/ Logan Green
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Director
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August 26, 2016
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Logan Green
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/s/ Bonnie S. Hammer
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Director
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August 26, 2016
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Bonnie S. Hammer
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/s/ Kathleen C. Mitic
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Director
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August 26, 2016
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Kathleen C. Mitic
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/s/ Pierre M. Omidyar
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Founder and Director
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August 26, 2016
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Pierre M. Omidyar
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/s/ Paul S. Pressler
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Director
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August 26, 2016
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Paul S. Pressler
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/s/ Robert H. Swan
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Director
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August 26, 2016
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Robert H. Swan
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/s/ Perry M. Traquina
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Director
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August 26, 2016
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Perry M. Traquina
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EXHIBIT INDEX
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Exhibit
Number
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Description
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5.1
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Opinion of Sidley Austin 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 Sidley Austin 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).
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99.1
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eBay Inc. 2008 Equity Incentive Award Plan, as amended and restated.*
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*
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Filed as an exhibit to the Companys Current Report on Form 8-K filed with the Commission on April 27, 2016 and incorporated herein by reference.
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