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)

 

 

 

     

Delaware

(State or other jurisdiction of

incorporation or organization)

 

94-3319956

(I.R.S. Employer

Identification Number)

 

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:

     

Brett E. Cooper, Esq.

Orrick, Herrington and Sutcliffe LLP

The Orrick Building

405 Howard Street

San Francisco, California 94105

(415) 773-5700

 

Samantha E. Harnett, Esq.

Vice President, General Counsel and Secretary

ZipRealty, Inc.

2000 Powell Street, Suite 300

Emeryville, CA 94608

(510) 735-2600

 

Calculation of Registration Fee

 

Title of Securities to

be Registered

Amount to be

Registered (1)

Proposed Maximum

Aggregate

Offering Price

Per Share

Proposed Maximum

Aggregate

Offering Price

Amount of

Registration Fee

Common Stock available for issuance, par value $0.001 per share 827,702 $3.29(2) $2,723,139.58(2) $371.44

 

(1) 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.
(2) 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.

 

  

1
 

 

 

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:

 

(a) 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”).

 

(b) 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.

 

(c) 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.

 

     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.

 

 

2
 

 

Item 8. Exhibits.

     

Exhibit

Number  

 

 

 

 

Description 

 

 

 

4.1(1)   2004 Equity Incentive Plan
     
5.1   Opinion of Orrick, Herrington and Sutcliffe LLP as to the legality of the securities being registered
     
23.1   Consent of Moss Adams LLP
     
23.2   Consent of PricewaterhouseCoopers LLP
     
23.3   Consent of Orrick, Herrington and Sutcliffe LLP (included in Exhibit 5.1)
     
24.1   Power of Attorney (included on signature page)

(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)

 

 

3
 

 

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.

 

     
   

ZIPREALTY, INC.

 

By:

  /s/ Charles C. Baker
   
 

Charles C. Baker

Chief Executive Officer and President


 

 

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   Title   Date  
           
/s/ Charles C. Baker   Chief Executive Officer, President and Director   March 27, 2013  
Charles C. Baker          
           
/s/ Eric L. Mersch   Senior Vice President, Chief Financial Officer   March 27, 2013  
Eric L. Mersch   and Chief Accounting Officer      
           
/s/ Elisabeth H. DeMarse    Director   March 27, 2013  
Elisabeth H. DeMarse          
           
/s/ Robert C. Kagle    Director   March 27, 2013  
Robert C. Kagle          
           
/s/ Stanley M. Koonce, Jr.    Director   March 27, 2013  
Stanley M. Koonce, Jr.          
           
/s/ Gary A. Wetsel   Director   March 27, 2013  
Gary A. Wetsel          
           
/s/ Donald F. Wood   Chairman of the Board   March 27, 2013  
Donald F. Wood          

 

 

4
 

 

 

Index to Exhibits

 

Exhibit

Number  

 

 

 

 

Description  

 

 

 

4.1(1)   2004 Equity Incentive Plan
     
5.1   Opinion of Orrick, Herrington and Sutcliffe LLP as to the legality of the securities being registered
     
23.1   Consent of Moss Adams LLP
     
23.2   Consent of PricewaterhouseCoopers LLP
     
23.3   Consent of Orrick, Herrington and Sutcliffe LLP (included in Exhibit 5.1)
     
24.1   Power of Attorney (included on signature page)

 

(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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