-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TyOsNUy7lMgct4Z/SAAtH59AvyDblS3YqJeo0LXUmJGB6vrG+GRT1FYOXhtRTM/X V+iV2dh7XZTVdnfuZcm3DA== 0000893750-01-000197.txt : 20010410 0000893750-01-000197.hdr.sgml : 20010410 ACCESSION NUMBER: 0000893750-01-000197 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20010403 EFFECTIVENESS DATE: 20010403 FILER: COMPANY DATA: COMPANY CONFORMED NAME: DRUGSTORE COM INC CENTRAL INDEX KEY: 0001086467 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-DRUG STORES AND PROPRIETARY STORES [5912] IRS NUMBER: 043416255 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-58174 FILM NUMBER: 1592492 BUSINESS ADDRESS: STREET 1: 13920 SE EASTGATE STE 300 CITY: BELLEVUE STATE: WA ZIP: 98005 BUSINESS PHONE: 4258815131 MAIL ADDRESS: STREET 1: 13920 SOUTHEAST EASTGATE WAY STREET 2: SUITE 300 CITY: BELLEVUE STATE: WA ZIP: 98005 S-8 1 0001.txt As filed with the Securities and Exchange Commission on April 2, 2001 Registration No. 333- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------- DRUGSTORE.COM, INC. (Exact name of Registrant as specified in its charter) Delaware 04-3416255 (State or other jurisdiction of (I.R.S. Employer Identification incorporation or organization) Number) Drugstore.com, Inc. 13920 Southeast Eastgate Way, Suite 300 Bellevue, Washington 98005 (Address, including zip code, of Registrant's principal executive office) 1998 Stock Plan (Full title of the Plan) --------------- Peter M. Neupert Chairman of the Board, President and Chief Executive Officer Drugstore.com, Inc. 13920 Southeast Eastgate Way, Suite 300 Bellevue, Washington 98005 (425) 372-3200 (Name, address, including zip code, and telephone number, including area code, of Registrant's agent for service) Copies to: William H. Hinman, Sr. Esq. Simpson Thacher & Bartlett 3330 Hillview Avenue Palo Alto, California 94304 (650) 251-5000 CALCULATION OF REGISTRATION FEE Proposed Maximum Proposed Amount Offering Maximum Amount of Title of Securities to be to be Price Per Aggregate Registration Registered Registered Share Offering Price Fee - ------------------------- ---------- --------- ------------- ---------- Common Stock, $0.0001 par value per share 10,300,162 $.90625 $9,334,521.8125 $2,333.63 (a) Pursuant to Rules 457(h)(1) and 457(c) under the Securities Act of 1933, the proposed maximum offering price per share, the proposed maximum aggregate offering price and the amount of registration fee have been computed on the basis of the price of the Common Stock as reported on the Nasdaq National Market on March 28, 2001. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference The following documents filed by Drugstore.com, Inc. (the "Company" or the "Registrant") with the Securities and Exchange Commission (the "Commission") pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are hereby incorporated by reference in this Registration Statement: (a) The Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2000 as filed on March 30, 2001 (File No. 000- 26137, Film No. 1588292). (b) The Company's Current Report on Form 8-K filed on January 26, 2001 (File No. 000-26137, Film No. 1516482). (c) The description of the Company's Common Stock incorporated by reference in the Prospectus filed pursuant to Rule 424 filed on October 10, 2000 and by the Company's Registration Statement on Form S-1, as amended, filed on May 19, 1999 and February 9, 2000. All documents filed by the Company pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement indicating that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Item 4. Description of Securities Not required. Item 5. Interests of Named Experts and Counsel Not applicable. Item 6. Indemnification of Directors and Officers Section 145 of the General Corporation Law of the State of Delaware (the "Delaware Law") empowers a Delaware corporation to indemnify any persons who are, or are threatened to be made, parties to any threatened, pending or completed legal action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person is or was an officer, director, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise. The indemnity may include expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided that such officer, director, employee or agent acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation's best interests, and, for criminal proceedings, had no reasonable cause to believe his conduct was unlawful. A Delaware corporation may indemnify officers and directors in an action by or in the right of the corporation under the same conditions, except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him against the expenses which such officer or director actually and reasonably incurred. The Company's Certificate of Incorporation provides that the Company shall indemnify directors and officers made party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, including appeals, to the fullest extent permitted by the laws of the State of Delaware. Such indemnification shall continue after an individual ceases to be an officer or director and shall inure to the benefit of the heirs, executors and administrators of such person. The Company's Certificate of Incorporation also provides that a director of the Company shall not be personally liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended. Article VI of the By-laws of the Company provides for indemnification of its officers and directors to the fullest extent permitted by Section 145 of the DGCL. Section 102(b)(7) of the DGCL provides that a Delaware corporation may eliminate or limit the personal liability of a director to a Delaware corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL relating to the unlawful payment of a dividend or an unlawful stock purchase or redemption or (iv) for any transaction from which the director derived an improper personal benefit. Article VII of the Restated Certificate of Incorporation of the Company provides for the elimination of personal liability of its directors for monetary damages for breach of fiduciary duty as a director, except as otherwise provided by the DGCL. The Company has entered into a Directors and Officers Indemnification Agreement which provides that directors and officers shall be indemnified to the fullest extent permitted by applicable law and obligates the Company to indemnify the directors and officers of the Company (a) if any director or officer is or may become a party to any proceeding against all expenses reasonably incurred by such director or officer in connection with the defense or settlement of such proceeding, but only if such director or officer acted in good faith and in a manner which such director or officer reasonably believed to be in or not opposed to the best interests of the Company, and in the case of a criminal action or proceeding, in addition, only if such director or officer had no reasonable cause to believe that his or her conduct was unlawful, (b) if a director or officer is or may become a party to any proceeding by or in the name of the Company to procure a judgment in its favor against all expenses reasonably incurred by such director or officer in connection with the defense or settlement of such proceeding, but only if such director or officer acted in good faith and in a manner which such director or officer reasonably believed to be in or not opposed to the best interests of the Company, except no indemnification for expenses need be made in respect of any claim in which such director or officer shall have been adjudged liable to the Company unless a court in which the proceeding is brought determines otherwise and (c) if a director or officer has been successful on the merits or otherwise in defense of any proceeding or claim. The indemnification rights conferred by the Certificate of Incorporation of the Company are not exclusive of any other right to which a person seeking indemnification may otherwise be entitled. The Company may also provide liability insurance for the directors and officers for certain losses arising from claims or charges made against them while acting in their capacities as directors or officers. Item 7. Exemption from Registration Claimed Not applicable. Item 8. Exhibits The following exhibits are filed as part of this Registration Statement: 4.1 Amended and Restated Certificate of Incorporation of the Company (incorporated by reference to Exhibit B of the Company's Definitive Proxy Statement on Form DEFS14A File No. 000-26137, Film No. 736376) filed on October 6, 2000. 4.2 Amended and Restated By Laws of the Company filed as Exhibit 3.2 to the Company's Registration Statement on Form S-1 filed on February 9, 2000. 4.3 The description of the Company's Common Stock incorporated by reference in the Prospectus filed pursuant to Rule 424 filed on October 10, 2000 and by the Company's Registration Statement on Form S-1, as amended, filed on May 19, 1999 and February 9, 2000. 5 Opinion of Simpson Thacher & Bartlett. 23.1 Consent of Ernst & Young LLP, Independent Auditors. 23.2 Consent of Simpson Thacher & Bartlett (included in their opinion filed as Exhibit 5 hereto). 24 Power of Attorney. Item 9. Undertakings 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 of 1933 (the "Act"); (ii) to reflect in the prospectus any facts or events arising after the effective date of this 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 this Registration Statement (except to the extent the information required to be included by clauses (i) or (ii) is contained in periodic reports filed by the Company pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference into this Registration Statement); (iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement. (2) That, for the purposes of determining any liability under the 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. (4) That, for purposes of determining any liability under the Act, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act that is incorporated by reference in this 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. (5) Insofar as indemnification for liabilities arising under the 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 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 Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Act, 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 Bellevue, State of Washington, on this 30th day of March, 2001. DRUGSTORE.COM, INC. (Registrant) By /s/ Robert A. Barton ------------------------------------ Robert A. Barton Vice President of Finance and Chief Financial Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the date indicated. Signature Title Date /s/ Peter M. Neupert Chairman, President and Chief March 30, 2001 ----------------- Executive Officer (principal Peter M. Neupert executive officer) /s/ Robert A. Barton Vice President and Chief March 30, 2001 ----------------- Financial Officer (principal Robert A. Barton financial officer and principal accounting officer) /s/ Jeff Bezos Director March 30, 2001 ----------------- Jeff Bezos /s/ Brook Byers Director March 30, 2001 ----------------- Brook Byers /s/ L. John Doerr Director March 30, 2001 ----------------- L. John Doerr /s/ Melinda French Gates Director March 30, 2001 ----------------- Melinda French Gates /s/ Mary Sammons Director March 30, 2001 ----------------- Mary Sammons /s/ William Savoy Director March 30, 2001 ----------------- William Savoy /s/ Howard Schultz Director March 30, 2001 ----------------- Howard Schultz INDEX TO EXHIBITS Exhibit Number Description 4.1 Amended and Restated Certificate of Incorporation of the Company (incorporated by reference to Exhibit B of the Company's Definitive Proxy Statement on Form DEFS14A File No. 000-26137, Film No. 736376) filed on October 6, 2000. 4.2 Amended and Restated By Laws of the Company filed as Exhibit 3.2 to the Company's Registration Statement on Form S-1 filed on February 9, 2000. 4.3 The description of the Company's Common Stock incorporated by reference in the Prospectus filed pursuant to Rule 424 filed on October 10, 2000 and by the Company's Registration Statement on Form S-1, as amended, filed on May 19, 1999 and February 9, 2000. 5 Opinion of Simpson Thacher & Bartlett. 23.1 Consent of Ernst & Young LLP, Independent Auditors 23.2 Consent of Simpson Thacher & Bartlett (included in their opinion filed as Exhibit 5 hereto). 24 Power of Attorney. EX-5 2 0002.txt Exhibit 5 SIMPSON THACHER & BARTLETT LETTERHEAD March 30, 2001 Drugstore.com, Inc. 13920 Southeast Eastgate Way, Suite 300 Bellevue, Washington 98005 Ladies and Gentlemen: We have acted as counsel to Drugstore.com, Inc., a Delaware corporation (the "Company"), in connection with the Registration Statement on Form S-8 (the "Registration Statement") filed by the Company with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Act"), relating to the issuance by the Company of 10,300,162 shares of Common Stock par value $0.0001 per share (the "Shares") under the Company's 1998 Stock Plan (the "Plan"). We have examined a copy of the Plan and the Registration Statement (including the exhibits thereto) which have been filed with the Commission as an exhibit to the Registration Statement. We also have examined the originals, or duplicates or certified or conformed copies, of such records, agreements, instruments and other documents and have made such other and further investigations as we have deemed relevant and necessary in connection with the opinions expressed herein. As to questions of fact material to this opinion, we have relied upon certificates of public officials and of officers and representatives of the Company. In such examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies, and the authenticity of the originals of such latter documents. Based upon the foregoing, and subject to the qualifications and limitations stated herein, we are of the opinion that when appropriate action has been taken by the Compensation Committee of the Board of Directors of the Company and when such shares have been awarded to participants in the Plan ("Participants"), or issued upon exercise of options granted to Participants, in each case, in accordance with the provisions of the Plan, any shares to be so awarded or issued to such Participants, the Shares will be validly issued, fully paid and nonassessable. We are members of the Bar of the State of New York and we do not express any opinion herein concerning any law other than the law of the State of New York and the Delaware General Corporation Law. We hereby consent to the filing of this opinion letter as Exhibit 5 to the Registration Statement. Very truly yours, /s/ Simpson Thacher & Bartlett SIMPSON THACHER & BARTLETT EX-23.1 3 0003.txt Exhibit 23.1 CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Drugstore.com , Inc. 1998 Stock Plan of our report dated January 19, 2001, except for the fourth paragraph of Note 6, as to which the date is March 20, 2001, with respect to the consolidated financial statements and schedule of Drugstore.com, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2000 filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP -------------------------- Ernst & Young LLP Seattle, Washington March 27, 2001 EX-24 4 0004.txt Exhibit 24 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned officers and directors of Drugstore.com, Inc. (the "Company") in their respective capacities set forth below constitutes and appoints Robert A. Barton, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to do any and all acts and all things and to execute any and all instruments which said attorney and agent may deem necessary or desirable to enable the Company to comply with the Securities Act of 1933, as amended, and any rules, regulations and requirements of the Securities and Exchange Commission thereunder in connection with the registration under such Act of shares of common stock of the Company ("Common Stock") to be issued or transferred pursuant to the 1998 Stock Plan, to the extent that any such registration may be required in the opinion of the executive officers of the Company, upon the advice of counsel, including without limitation, the power and authority to sign the name of the undersigned individual in the capacity indicated below opposite the name of such individual to any Registration Statement on Form S-8 or any Form relating to the registration of such common stock to be filed with the Securities and Exchange Commission with respect to said common stock, to sign any and all amendments (including post-effective amendments) and supplements to any such 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, 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 their substitutes, may lawfully do or cause to be done by virtue hereof. Signature Title Date /s/ Peter M. Neupert Chairman, President March 30, 2001 ------------------ and Chief Executive Peter M. Neupert Officer (principal executive officer) /s/ Kal Raman Senior Vice President March 30, 2001 ------------------ and Chief Operating Kal Raman Officer /s/ Jeff Bezos Director March 30, 2001 ------------------ Jeff Bezos /s/ Brook Byers Director March 30, 2001 ------------------ Brook Byers /s/ L. John Doerr Director March 30, 2001 ------------------ L. John Doerr /s/ Melinda French Gates Director March 30, 2001 ------------------ Melinda French Gates /s/ Mary Sammons Director March 30, 2001 ------------------ Mary Sammons /s/ William Savoy Director March 30, 2001 ------------------ William Savoy /s/ Howard Schultz Director March 30, 2001 ------------------ Howard Schultz -----END PRIVACY-ENHANCED MESSAGE-----