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As filed with the Securities and Exchange Commission on August 10, 1999
Registration No. 333_______________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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VALUE AMERICA, INC.
(Exact name of registrant as specified in its charter)
VIRGINIA 33-0712568
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) identification number)
1560 INSURANCE LANE
CHARLOTTESVILLE, VIRGINIA 22911
(Address of Principal Executive Offices)
(804) 817-7700
(Registrant's telephone number, including area code)
1997 STOCK INCENTIVE PLAN
(Full title of the plan)
DEAN M. JOHNSON
EXECUTIVE VICE PRESIDENT,
CHIEF FINANCIAL OFFICER AND SECRETARY
VALUE AMERICA, INC.
1560 INSURANCE LANE
CHARLOTTESVILLE, VIRGINIA 22911
(804) 817-7700
(Name and address, including zip code, and telephone number, including area
code, of agent for service)
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With a copy to:
R. SCOTT KILGORE, ESQ.
WILMER, CUTLER & PICKERING
2445 M STREET, N.W.
WASHINGTON, D.C. 20037
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Name of Plan Registered Registered Per Share (1) Price (1) Fee (1)
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<S> <C> <C> <C> <C> <C>
1997 Stock Incentive Plan Common Stock, no 6,250,000 $7.51 $46,937,500 $13,846.56
(the "1997 Plan") par value
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</TABLE>
(1) In accordance with Rule 457(h), the aggregate offering price and the
amount of the registration fee are based on 6,250,000 options previously
granted pursuant to the 1997 Plan and a weighted average per share
exercise price of $7.51.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The document(s) containing the information required by Item 1 of
Form S-8 and the statement of availability of registrant information and any
other information required by Item 2 of Form S-8 will be sent or given to
participants as specified by Rule 428 under the Securities Act of 1933, as
amended (the "Securities Act"). In accordance with Rule 428 and the requirements
of Part I of Form S-8, such documents are not being filed with the SEC either as
part of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 under the Securities Act. Value America, Inc. (the
"Registrant" or the "Company") shall maintain a file of such documents in
accordance with the provisions of Rule 428. Upon request, the Registrant shall
furnish the SEC or its staff a copy or copies of all of the documents included
in such file.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference
The Company hereby incorporates by reference the documents listed in (a)
through (c) below. In addition, all documents subsequently filed by the Company
pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") (prior to 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 filing of such documents.
(a) Prospectus on Form 424B1 filed by the Company on April 8, 1999.
(b) The Company's Report on Form 10-Q for the period ended March 31,
1999 filed on May 20, 1999.
(c) The description of the Company's Common Stock which is incorporated
by reference in the Prospectus on Form 424B1 filed by the Company on April
8, 1999, including any amendment or report filed for the purpose of
updating such description.
ITEM 4. Description of Securities
Not Applicable.
ITEM 5. Interests of Named Experts and Counsel
The validity of the shares of Company Common Stock that may be issued
pursuant to options granted under the 1997 Plan is being passed upon for the
Company by LeClair Ryan, a Professional Corporation, Richmond, Virginia. Gary D.
LeClair, the Chairman of LeClair Ryan is a director of the Company, and Mr.
LeClair and certain of his partners beneficially own, in the aggregate, 201,252
shares of Company Common Stock.
ITEM 6. Indemnification of Directors and Officers
The Company's Articles of Incorporation provide that no director or
officer of the Company shall be liable to the Company or its shareholders for
monetary damages with respect to any transaction, occurrence or course of
conduct in any proceeding brought by or in the right of the Company or brought
by or on behalf of shareholders of the Company, except for liability resulting
from that person's having engaged in willful misconduct or a knowing violation
of criminal law, or any federal or state securities law.
The Company's Articles of Incorporation further provide that the Company
shall indemnify (i) any person who was or is a party to any proceeding,
including a proceeding brought by a shareholder in the right of the Company or
brought by or on behalf of shareholders of the Company, by reason of the fact
that the person is or was a director or officer of the Company, or (ii) any
director or officer who is or was serving at the request of the Company as a
director, trustee, partner or officer of another corporation, partnership, joint
venture, trust, employee
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benefit plan or other enterprise, against any liability incurred by that person
in connection with the proceeding unless that person engaged in willful
misconduct or a knowing violation of the criminal law.
The Board of Directors of the Company is authorized to enter into a
contract to indemnify any director or officer in respect of any proceedings
arising from any act or omission, whether occurring before or after the
execution of the contract.
There is no pending litigation or proceeding involving an officer or
director of the Company as to which indemnification is being sought, and the
Company is not aware of any threatened litigation that may result in claims for
indemnification by any officer or director. The rights of indemnification
provided in the Company's Articles of Incorporation are nonexclusive of any
other rights that may be available under any insurance or other agreement, by
vote of shareholders or disinterested directors, or otherwise. In addition, the
Articles of Incorporation authorize the Company to maintain insurance on behalf
of any person who is or was a director, officer or agent of the Company, whether
or not the Company would have the power to provide indemnification to such
person.
ITEM 7. Exemption from Registration Claimed
Not Applicable.
ITEM 8. Exhibits
The Exhibit Index attached to this Registration Statement is incorporated
herein by reference.
ITEM 9. Undertakings
(a) 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;
(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;
(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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(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
by the registrant pursuant to section 13 or section 15(d) of the
Exchange Act that are incorporated by reference in the registration
statement.
(2) 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.
(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.
(b) 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 section 15(d) of
the Exchange Act (and, where applicable, each filing of any employee
benefit plan's annual report
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pursuant to section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement reflating 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) 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 SEC
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 of 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.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 Charlottesville, Virginia on the 5th day of August, 1999.
VALUE AMERICA, INC.
By: /s/ Dean M. Johnson
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Dean M. Johnson
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
under the heading "Signature" constitutes and appoints Craig A. Winn, Thomas
Morgan and Dean M. Johnson as his or her true and lawful attorney-in-fact each
acting alone, 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 sign any
or 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 attorney-in-fact full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully for all intents and purposes as he or she might or could do
in person, hereby ratifying and confirming all that said attorney-in-fact, or
his or her substitute, acting alone, 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.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <S> <C>
/s/ Craig A. Winn Chairman of the Board August 5, 1999
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Craig A. Winn
/s/ Thomas Morgan Chief Executive Officer August 5, 1999
- ----------------------------- (Principal executive officer)
Thomas Morgan
/s/ Dean M. Johnson Executive Vice President, Chief August 5, 1999
- ------------------------ Financial Officer, Secretary
Dean M. Johnson (Principal Financial Officer)
/s/ Sandra T. Watson Senior Vice President - Finance August 5, 1999
- ----------------------------------- (Principal Accounting Officer)
Sandra T. Watson
</TABLE>
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<TABLE>
<S> <S> <C>
/s/ William J. Bennett Director August 5, 1999
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William J. Bennett
/s/ Thomas J. Casey Director August 4, 1999
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Thomas J. Casey
Director August , 1999
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Roy Keith
/s/ Gary D. LeClair Director August 5, 1999
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Gary D. LeClair
- --------------------------------- Director August , 1999
Gerard R. Roche
/s/ William D. Savoy Director August 5, 1999
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William D. Savoy
Director August , 1999
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Rex Scatena
/s/ Frederick W. Smith Director August 5, 1999
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Frederick W. Smith
Director August , 1999
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Michael R. Steed
</TABLE>
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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4.1* 1997 Stock Incentive Plan
4.2 First Amendment to 1997 Stock Incentive Plan
5 Opinion of LeClair Ryan, as to the legality of the securities being
registered
23 Consent of PricewaterhouseCoopers LLP
24 Power of attorney (included on signature pages of this Registration
Statement)
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* Incorporated by reference to Value America's Registration Statement
on Form S-1 Amendment No. 1 (File No. 333-70961) as filed with the
SEC on March 18, 1999.
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EXHIBIT 4.2
FIRST AMENDMENT
TO THE VALUE AMERICA, INC. 1997 STOCK INCENTIVE PLAN
FIRST AMENDMENT dated as of June 18, 1999, to the Value America, Inc. 1997
Stock Incentive Plan, by Value America, Inc. (the "Company").
The Company maintains the Value America, Inc. 1997 Stock Incentive Plan,
effective as of August 1, 1997 (the "Plan"). The Company has the power to amend
the Plan and now wishes to do so.
NOW, THEREFORE, the Plan is hereby amended as follows:
I. Effective October 21, 1997, Section 2(j) is amended to replace
"Nevada" with "Virginia."
II. Effective April 8, 1999, Section 2(m) is amended to replace "average
of the high and low per share sales price" with "closing price per share" in
each place where it appears in this section.
III. Effective January 11, 1999, the figure 1,250,000 in the first
sentence of Section 4 is replaced with 6,250,000.
IV. In all respects not amended, the Plan is hereby ratified and
confirmed.
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EXHIBIT 5
[LECLAIR RYAN LETTERHEAD]
August 9, 1999
Value America, Inc.
1550 Insurance Lane
Charlottesville, Virginia 22911
Gentlemen/Ladies:
At your request, we have examined the Registration Statement on Form S-8
(the "Registration Statement") to be filed by you with the Securities and
Exchange Commission (the "Commission") on or about August 9, 1999 in connection
with the registration under the Securities Act of 1933, as amended, of an
aggregate of 6,250,000 shares of your common stock, without par value per share
(the "Stock"), subject to issuance by you upon the exercise of stock options
granted by you under your 1997 Stock Incentive Plan (the "1997 Plan").
In rendering this opinion, we have examined the following:
(1) your registration statement on Form S-1 (File Number 333-70961) filed
with the Commission on January 21, 1999, as subsequently amended,
together with the exhibits filed as a part thereof, including without
limitation, the 1997 Plan and related stock option grant and exercise
agreements;
(2) your registration statement on Form 8-A (File Number 000-25689) filed
with the Commission on April 1, 1999;
(3) the Registration Statement, together with the exhibits filed as a part
thereof;
(4) the minutes of meetings and actions by written consent of the
Compensation Committee and the Board of Directors that are contained
in your minute books that are in our possession;
(5) the stock records for you that you have provided to us (consisting of
a list of stockholders and a list of option holders respecting shares
of the Stock that was prepared by you and dated August 6, 1999); and
(6) a Certificate of Secretary and Chief Financial Officer, dated August
9, 1999, relating to certain factual matters.
We also confirmed the continued effectiveness of your registration under
the Securities
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Exchange Act of 1934, as amended, by telephone call to the offices of the
Commission and your eligibility to use Form S-8.
In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to, the genuineness of all signatures on
original documents, the authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies, the legal capacity of all natural persons executing the same, the lack
of any undisclosed terminations, modifications, waivers or amendments to any
documents reviewed by us and the due execution and delivery of all documents
where due execution and delivery are prerequisites to the effectiveness thereof.
As to matters of fact relevant to this opinion, we relied solely upon our
examination of the documents referred to above and have assumed the current
accuracy and completeness of the information obtained from public officials and
records referred to above. We made no independent investigation or other attempt
to verify the accuracy of any such information or to determine the existence or
non-existence of any other factual matters. However, we have no actual knowledge
of any facts that causes us reasonably to believe that the opinion expressed
herein is not accurate.
We are admitted to practice law in Virginia, and we express no opinion
herein with respect to the application or effect of the laws of any jurisdiction
other than the existing laws of the United States of America and Virginia.
Based upon, subject to, and in all respects limited to the foregoing, it is
our opinion that shares of the Stock that may be issued and sold by you upon the
exercise of stock options granted or to be granted under the 1997 Plan, and,
when issued and sold in accordance with the 1997 Plan and stock option or
purchase agreements to be entered into thereunder and in the manner described in
the Registration Statement, will be validly issued, fully paid and
nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us, if any, in the
Registration Statement, the prospectus constituting a part thereof and any
amendments thereto. This opinion speaks only as of its date and we assume no
obligation to update this opinion should circumstances change thereafter.
This opinion is intended solely for the your use as an exhibit to the
Registration Statement and is not to be relied upon for any other purpose or
furnished to or filed with any person or entity other than the commissioner.
Very truly yours,
LECLAIR RYAN, A Professional Corporation
By /s/ Gary D. LeClair
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Gary D. LeClair, Chairman
2
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EXHIBIT 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Value America, Inc., of our report dated March 5, 1999
which appears in Value America's Registration Statement on Form S-1 for the year
ended December 31, 1998.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
McLean, Virginia
August 6, 1999
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