S-8

As filed with the Securities and Exchange Commission on January 10, 2014

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)

 

 

 

Delaware   77-0430924

(State or other jurisdiction of

incorporation or organization)

  

(I.R.S. Employer

Identification No.)

 

 

2065 Hamilton Avenue

San Jose, California 95125

(Address of principal executive offices)

 

 

Braintree, Inc. 2011 Equity Incentive Plan, as amended

Venmo Inc. 2010 Equity Compensation Plan, as amended

(Full title of the plan)

 

 

Michael R. Jacobson

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):

 

Large accelerated filer   x    Accelerated filer   ¨
Non-accelerated filer   ¨  (Do not check if a smaller reporting company)    Smaller reporting company   ¨

 

 

CALCULATION OF REGISTRATION FEE

 

 

Title of Securities to be Registered   Amount to be
Registered (1)		  

Proposed Maximum

Offering

Price per Share

  

Proposed Maximum

Aggregate

Offering Price

  

Amount of

Registration Fee

 

Common Stock, par value $0.001 per share

 

   459,426(2)   $51.84(3)   $23,816,643.84(3)   $3,067.59

 

Common Stock, par value $0.001 per share

 

   546,678(4)   $3.45(5)   $1,886,039.10(5)   $242.93

 

Common Stock, par value $0.001 per share

 

   14,377(6)   $4.58(7)   $65,846.66(7)   $8.49

 

 

 

(1) Pursuant to the Agreement and Plan of Merger, dated as of September 26, 2013, by and among PayPal, Inc. Vino Acquisition Corp., eBay Inc. (“eBay” or the “Company”), Braintree, Inc. (“Braintree”) and Fortis Advisors LLC, as the Securityholders’ Agent (the “Merger Agreement”), eBay assumed all the outstanding unvested restricted stock units of Braintree and all the outstanding unvested options to purchase shares of common stock of Braintree granted under the Braintree, Inc. 2011 Equity Incentive Plan, as amended (the “Braintree Plan”), in each case, subject to their continued vesting schedules and conditions. In addition, eBay assumed all the outstanding unvested options to purchase shares of common stock of Braintree granted under the Venmo Inc. 2010 Equity Compensation Plan, as amended (the “Venmo Plan” and together with the Braintree Plan, the “Plans”), subject to their continued vesting schedules and conditions. The assumed restricted stock units may be settled solely with shares of common stock of eBay, with appropriate adjustments to the number of shares underlying the assumed restricted stock units in accordance with the terms of the Merger Agreement. The assumed options became exercisable solely to purchase shares of common stock of eBay, with appropriate adjustments to the number of shares into which the assumed options are exercisable and the exercise price of such options, in accordance with the terms of the Merger Agreement.

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 of eBay that become issuable under the Plans 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 common stock of eBay.

 

(2) Represents shares of common stock of eBay into which the outstanding unvested restricted stock units as of December 19, 2013 issued under the Braintree Plan may be settled.

 

(3) 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 registrant’s common stock on January 6, 2014 as reported on the Nasdaq Global Select Market.

 

(4) Represents shares of common stock of eBay subject to outstanding unvested options as of December 19, 2013 under the Braintree Plan.

 

(5) 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 weighted average exercise price for shares subject to the outstanding unvested options granted pursuant to the Braintree Plan.

 

(6) Represents shares of common stock of eBay subject to outstanding unvested options as of December 19, 2013 under the Venmo Plan.

 

(7) 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 weighted average exercise price for shares subject to the outstanding unvested options granted pursuant to the Venmo Plan.

 

 

 

PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

ITEM 1. PLAN INFORMATION*

ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION

 

* The prospectus containing information required by Part I of Form S-8 and related to this Registration Statement is 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 holder of outstanding unvested restricted stock units granted under the Braintree Plan and each holder of outstanding unvested stock options granted under the Plans, 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 Plans is not being filed with or included in this Registration Statement. The prospectus for the Plans 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.

PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE

The following documents filed by the Company with the Commission (Commission File No. 000-24821) are incorporated by reference into this Registration Statement:

(a) The Company’s latest annual report on Form 10-K for the fiscal year ended December 31, 2012, filed with the Commission on February 1, 2013, which includes audited financial statements for the Company for the fiscal year ended December 31, 2012;

(b) The Company’s quarterly reports on Form 10-Q for the quarterly periods ended March 31, 2013, filed with the Commission on April 19, 2013; June 30, 2013, filed with the Commission on July 19, 2013; and September 30, 2013, filed with the Commission on October 18, 2013; and

(c) The description of the Company’s 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 (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.

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 Company’s 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 Company’s 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.

ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED

Not applicable.

ITEM 8. EXHIBITS

The following exhibits are filed as part of this Registration Statement.

 

Exhibit

Number

    Description
  5.1    Opinion of Sidley Austin LLP.
23.1    Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm.
23.2    Consent of Sidley Austin LLP (included in Exhibit 5.1 to this Registration Statement).
24.1    Power of Attorney (included on the signature page of this Registration Statement).
99.1    Braintree, Inc. 2011 Equity Incentive Plan, as amended.
99.2    Venmo Inc. 2010 Equity Compensation Plan, as amended.

ITEM 9. UNDERTAKINGS

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 registrant’s annual report pursuant to Section 13(a) or 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 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 January 10, 2014.

 

eBay Inc.
/s/ John J. Donahoe

John J. Donahoe

President, Chief Executive Officer and

Director

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE  PRESENTS, that each person whose signature appears below constitutes and appoints John J. Donahoe, Robert H. Swan, Michael R. Jacobson 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.

 

Signature    Title   Date

/s/ John J. Donahoe

    John J. Donahoe

   

President, Chief Executive Officer and Director

(Principal Executive Officer)

   January 10, 2014

/s/ Robert H. Swan

    Robert H. Swan

   

Senior Vice President, Finance and Chief

Financial Officer (Principal Financial Officer)

   January 10, 2014

/s/ Brian J. Doerger

    Brian J. Doerger

   

Vice President, Chief Accounting Officer

(Principal Accounting Officer)

   January 10, 2014

/s/ Pierre M. Omidyar

    Pierre M. Omidyar

    Founder, Chairman of the Board and Director   January 10, 2014

/s/ Fred D. Anderson

    Fred D. Anderson

    Director   January 10, 2014

/s/ Marc L. Andreessen

    Marc L. Andreessen

    Director   January 10, 2014

/s/ Edward W. Barnholt

    Edward W. Barnholt

    Director   January 10, 2014

/s/ Scott D. Cook

    Scott D. Cook

    Director   January 10, 2014

/s/ William C. Ford, Jr.

    William C. Ford, Jr.

    Director   January 10, 2014

/c/ Kathleen C. Mitic

    Kathleen C. Mitic

    Director   January 10, 2014

/s/ David M. Moffett

    David M. Moffett

    Director   January 10, 2014

/s/ Richard T. Scholosberg, III

    Richard T. Schlosberg, III

    Director   January 10, 2014

/s/ Thomas J. Tierney

    Thomas J. Tierney

    Director   January 10, 2014

EXHIBIT INDEX

 

Exhibit

Number

    Description
  5.1    Opinion of Sidley Austin LLP.
23.1    Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm.
23.2    Consent of Sidley Austin LLP (included in Exhibit 5.1 to this Registration Statement).
24.1    Power of Attorney (included on the signature page of this Registration Statement).
99.1    Braintree, Inc. 2011 Equity Incentive Plan, as amended.
99.2    Venmo Inc. 2010 Equity Compensation Plan, as amended.