Securities Registration: Employee Benefit Plan (s-8)
March 28 2013 - 6:02AM
Edgar (US Regulatory)
As filed with the Securities and Exchange
Commission on March 27, 2013
Registration No. 333-______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under The Securities Act of 1933
ZIPREALTY, INC.
(Exact name of Registrant as specified
in its charter)
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Delaware
(State or other jurisdiction of
incorporation or organization)
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94-3319956
(I.R.S. Employer
Identification Number)
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2000 Powell Street, Suite 300
Emeryville, CA 94608
(Address of principal executive offices)
(Zip Code)
2004 Equity Incentive Plan
(Full title of the plans)
Charles C. Baker
Chief Executive Officer and President
2000 Powell Street, Suite 300
Emeryville, California 94608
(510) 735-2600
(Name and address including zip code
and telephone number,
including area code, of agent for service)
Copy to:
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Brett E. Cooper, Esq.
Orrick, Herrington and Sutcliffe LLP
The Orrick Building
405 Howard Street
San Francisco, California 94105
(415) 773-5700
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Samantha E. Harnett, Esq.
Vice President, General Counsel and Secretary
ZipRealty, Inc.
2000 Powell Street, Suite 300
Emeryville, CA 94608
(510) 735-2600
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Calculation of Registration Fee
Title of Securities to
be Registered
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Amount to be
Registered (1)
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Proposed Maximum
Aggregate
Offering Price
Per Share
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Proposed Maximum
Aggregate
Offering Price
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Amount of
Registration Fee
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Common Stock available for issuance, par value $0.001 per share
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827,702
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$3.29(2)
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$2,723,139.58(2)
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$371.44
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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 the Registrant’s Common Stock that become issuable under the plans by
reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration
that increases the number of outstanding shares of Registrant’s Common Stock.
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(2)
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Estimated in accordance with Rule 457(h) under the Securities Act of 1933, as amended, solely for
the purpose of calculating the registration fee on the basis of $3.29 per share, which represents the average of the high and low
prices of the Common Stock reported on The NASDAQ Stock Market for March 20, 2013.
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INFORMATION REQUIRED IN REGISTRATION
STATEMENT
GENERAL INSTRUCTION E INFORMATION
On November
18, 2004, the Registrant filed with the Securities and Exchange Commission a Registration Statement on Form S-8, File No. 333-120606,
with respect to 2,872,429 shares of common stock, par value $0.001 per share, to be issued pursuant to the Registrant’s 1999
Stock Plan and 1,259,446 shares of common stock, par value $0.001 per share, to be issued pursuant to the Registrant’s 2004
Equity Incentive Plan. That filing is hereby incorporated by reference.
Pursuant to the provisions of Section 3(a)
of the 2004 Equity Incentive Plan, on the first day of each fiscal year of the Registrant beginning in 2006, an annual increase
is made to the number of shares available for issuance under the 2004 Equity Incentive Plan, which is also known as an Evergreen
Increase. The Evergreen Increase for each fiscal year from 2006 through 2012 was reflected by the filing of a Registration Statement
on Form S-8 on each of January 10, 2006, File No. 333-130941, January 11, 2007, File No. 333-139918, January 18, 2008, File No.
333-148740, January 20, 2009, File No. 333-156800, March 11, 2010, File No. 333-165392, January 31, 2011, File No. 333-171978,
and March 9, 2012, File No. 333-180010, respectively. Each of these filings is hereby incorporated by reference.
This Registration Statement on Form S-8
is being filed with respect to the Evergreen Increase on the first day of fiscal year 2013, which equaled 827,702 shares.
INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the Registrant
with the SEC are incorporated in this Registration Statement by reference as of their respective dates:
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(a)
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The Registrant’s Annual Report on Form 10-K (File No. 000-51002) for the fiscal year ended December 31, 2012, filed on
March 14, 2013, pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
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(b)
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All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by
the Annual Report referred to in (a) above.
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(c)
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The description of the Registrant’s Common Stock contained in its Registration Statement on Form 8-A (File No. 000-51002),
filed on October 26, 2004.
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All documents
subsequently filed with the SEC by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), prior to the filing of a post-effective amendment which indicates that
all securities offered herein 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 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 other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 8. Exhibits.
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Exhibit
Number
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Description
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4.1(1)
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2004 Equity Incentive Plan
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5.1
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Opinion of Orrick, Herrington and Sutcliffe LLP as to the legality of the securities being registered
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23.1
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Consent of Moss Adams LLP
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23.2
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Consent of PricewaterhouseCoopers LLP
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23.3
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Consent of Orrick, Herrington and Sutcliffe LLP (included in Exhibit 5.1)
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24.1
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Power of Attorney (included on signature page)
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(1) Incorporated by reference to Exhibit 10.3 filed with the
Registrant’s Registration Statement on Form S-1, as amended (Registration No. 333-115657)
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 Emeryville, state of California, on March 27, 2013.
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ZIPREALTY, INC.
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By:
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/s/ Charles C. Baker
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Charles C. Baker
Chief Executive Officer and President
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POWER OF ATTORNEY
KNOW ALL
PERSONS BY THESE PRESENTS
, that each person whose signature appears below constitutes and appoints Charles C. Baker and Eric
L. Mersch, and each of them, his or her attorneys-in-fact, each with the 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 to this Registration Statement on Form S-8, and
to file the same, with all exhibits thereto in all documents in connection therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that such attorneys-in-fact and agents or any of them, or his 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, this Registration Statement has been signed by the following persons in the capacities
and on the dates indicated.
Signature
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Title
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Date
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/s/ Charles C. Baker
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Chief Executive Officer, President and Director
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March 27, 2013
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Charles C. Baker
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/s/ Eric L. Mersch
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Senior Vice President, Chief Financial Officer
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March 27, 2013
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Eric L. Mersch
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and Chief Accounting Officer
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/s/ Elisabeth H. DeMarse
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Director
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March 27, 2013
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Elisabeth H. DeMarse
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/s/ Robert C. Kagle
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Director
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March 27, 2013
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Robert C. Kagle
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/s/ Stanley M. Koonce, Jr.
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Director
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March 27, 2013
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Stanley M. Koonce, Jr.
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/s/ Gary A. Wetsel
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Director
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March 27, 2013
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Gary A. Wetsel
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/s/ Donald F. Wood
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Chairman of the Board
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March 27, 2013
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Donald F. Wood
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Index to Exhibits
Exhibit
Number
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Description
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4.1(1)
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2004 Equity Incentive Plan
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5.1
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Opinion of Orrick, Herrington and Sutcliffe LLP as to the legality of the securities being registered
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23.1
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Consent of Moss Adams LLP
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23.2
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Consent of PricewaterhouseCoopers LLP
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23.3
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Consent of Orrick, Herrington and Sutcliffe LLP (included in Exhibit 5.1)
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24.1
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Power of Attorney (included on signature page)
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(1) Incorporated by reference to Exhibit 10.3 filed with the
Registrant’s Registration Statement on Form S-1, as amended (Registration No. 333-115657)
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