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As filed with the Securities and Exchange Commission on February 16, 2000
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Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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VARSITYBOOKS.COM INC.
(Exact name of registrant as specified in its charter)
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Delaware 54-1876848
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<S> <C>
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
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2020 K Street, NW, 6th Floor
Washington, D.C. 20006
(202) 667-3400
(Address of Principal Executive Offices)
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VarsityBooks.com Inc.
Employee Stock Purchase Plan
(Full Title of the Plan)
----------------------------
Eric J. Kuhn
Chief Executive Officer
2020 K Street, NW, 6th Floor
Washington, D.C. 20006
(Name and Address of Agent for Service)
(202) 667-3400
(Telephone Number, Including Area Code, of Agent for Service)
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Copies to:
Andrew M. Tucker, Esq.
Shaw Pittman
1676 International Drive
McLean, VA 22102
(703) 790-7900
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum Amount Of
Title Of Securities To Be Amount To Be Aggregate Offering Aggregate Offering Registration
Registered Registered Price Per Share Price Fee
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<S> <C> <C> <C> <C>
Common Stock, 500,000(1) $10.00(2) $5,000,000(2) $1320
$.0001 par value
per share
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(1) THIS REGISTRATION STATEMENT SHALL ALSO COVER ANY ADDITIONAL SHARES OF
COMMON STOCK WHICH BECOME ISSUABLE UNDER THE VARSITYBOOKS.COM INC. EMPLOYEE
STOCK PURCHASE PLAN BY REASON OF ANY STOCK DIVIDEND, STOCK SPLIT,
RECAPITALIZATION OR OTHER SIMILAR TRANSACTION EFFECTED WITHOUT THE RECEIPT OF
CONSIDERATION WHICH RESULTS IN AN INCREASE IN THE NUMBER OF THE REGISTRANT'S
OUTSTANDING SHARES OF COMMON STOCK.
(2) ESTIMATED SOLELY FOR THE PURPOSE OF CALCULATING THE REGISTRATION FEE
PURSUANT TO RULE 457(h) UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
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* Information required in Part I of Form S-8 to be contained in a prospectus
meeting the requirements of Section 10(a) of the Securities Act of 1933 is
omitted from this Registration Statement in accordance with Rule 428 under
the Securities Act of 1933 and the Note to Part I of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which are on file with the Securities and
Exchange Commission (the "Commission"), are incorporated herein by this
reference and made a part hereof:
(a) The description of the Registrant's Common Stock contained
in the Registrants' Registration Statement on Form 8-A filed
with the Commission on January 19, 2000 to register the
Common Stock of the Registrant under Section 12(g) of the
Exchange Act, including any amendment or report filed for
the purposes of updating such description.
(b) The Registrant's Registration Statement on Form S-1 (File
No. 333-89049)
All documents subsequently filed by the Registrant 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 de-registers all securities then remaining unsold shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
filing of such reports and documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law permits a corporation
to include in its charter documents, and in agreements between the corporation
and its directors and officers, provisions expanding the scope of
indemnification beyond that specifically provided by the current law.
Article 7 of the registrant's Eighth Amended and Restated Certificate of
Incorporation provides for the indemnification of directors to the fullest
extent permissible under Delaware law. A director of the Corporation will not be
personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability (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 General
Corporation Law of the State of Delaware, or (iv) for any transaction from which
the director derived any improper personal benefit. If the General Corporation
Law of the State of Delaware is amended to authorize corporate action further
eliminating or limiting the personal liability of directors then the liability
of a director of the
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Corporation shall be eliminated or limited to the fullest extent permitted by
the General Corporation Law of the State of Delaware as so amended.
In addition, to the maximum extent permitted by Delaware law in effect from
time to time, the Corporation will indemnify and pay, or reimburse reasonable
expenses in advance of final disposition of a proceeding, to (a) any individual
who is a current or former director or officer of the Corporation or (b) any
individual who, while a director or officer of the Corporation and at the
request of the Corporation, serves or has served as a director, officer, partner
or trustee of another corporation, partnership, joint venture, trust, employee
benefit plan or any other enterprise from and against any claim or liability to
which such person may become subject or which such person may incur by reason of
his status as a present or former director or officer of the Corporation. To the
maximum extent permitted by Delaware law in effect from time to time, the
Corporation will, with the approval of the board of directors, provide such
indemnification and advancement of expenses to a person who served a predecessor
of the Corporation in any of the capacities described in (a) or (b) above and to
any employee or agent of the Corporation or a predecessor of the Corporation.
Article 6 of the registrant's Amended and Restated Bylaws provides for the
indemnification of officers, directors and third parties acting on behalf of the
registrant to the fullest extent permissible under Delaware law, except that the
Registrant will indemnify such party in connection with a proceeding (or part
thereof) initiated by that party only if the proceeding (or part thereof) was
authorized by the Registrant's board of directors. The indemnification provided
under the Bylaws includes the right to be paid by the Registrant the expenses in
advance of any proceeding for which indemnification may be had in advance of its
final disposition, provided that the payment of such expenses in advance of any
proceeding for which indemnification may be had in advance of its final
disposition may be made only upon delivery to the Registrant of an undertaking
by or on behalf of the indemnified party to repay all amounts so advanced if it
shall ultimately be determined that such party is not entitled to be
indemnified. If a claim for indemnification is not paid by the Registrant within
sixty days after a written claim has been received by the Registrant, the
claimant may at any time thereafter bring suit against the Registrant to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant will also be paid the expense of prosecuting such suit.
In addition, the Bylaws grant the Registrant the authority to purchase and
maintain insurance on behalf of any person who is a director, officer, employee
or agent of the Registrant or another corporation, partnership, joint venture,
trust or other enterprise against any expense, liability or loss, whether or not
the Registrant would have the power to indemnify such person against such
expense, liability or loss under the General Corporation Law of the State of
Delaware.
The Registrant has entered into Indemnification Agreements with each of its
directors and executive officers to indemnify them in the amount and under the
circumstances described above.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
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EXHIBIT
NO. DESCRIPTION
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4.1 Specimen Certificate of the Registrant's Common Stock (incorporated by reference
hereto to Exhibit 4.1 of the Company's Registration Statement on Form S-1/A, File
No. 333-89049).
4.2 Fourth Amended and Restated Investor Rights Agreement (incorporated by
reference hereto to Exhibit 4.2 to the Company's Registration Statement on Form
S-1/A, File No. 333-89049).
4.3 Registration Rights Agreement with Campus Pipeline dated as of April 27, 1999
(incorporated by reference hereto to Exhibit 4.3 to the Company's Registration
Statement on Form S-1/A, File No. 333-89049).
4.4 Employee Stock Purchase Plan (incorporated by reference hereto to Exhibit 10.11
to the Company's Registration Statement on Form S-1/A, File No. 333-89049).
5.1 Opinion of Shaw Pittman, counsel to Registrant.
23.1 Consent of Shaw Pittman, counsel to Registrant (included in Exhibit 5.1 hereto).
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ITEM 9. UNDERTAKINGS.
(a) 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;
(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 there) which,
individually or the aggregate, represents a
fundamental change in the information set
forth in the 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 statements;
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, 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 securities which remain
unsold at the termination of the offering.
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(b) Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the registrant's
annual report filed pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in the 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Securities and
Exchange 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.
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SIGNATURES
The Registrant. 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 Washington, D.C., on this 16th day
of February, 2000.
VARSITYBOOKS.COM INC.
(Registrant)
/s/ ERIC J. KUHN
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Eric J. Kuhn
President, Chairman of the Board of Directors
and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned directors and/or officers of VarsityBooks.com
Inc., hereby severally constitute and appoint Eric J. Kuhn, President and
Chief Executive Officer, and Timothy J. Levy, Chairman of the Board, and each
of them individually, with fully powers of substitution and resubstitution, our
true and lawful attorneys, with full powers to them and each of them to sign
for us, in our names and in the capacities indicated below, the registration
statement on Form S-8 filed with the Securities and Exchange Commission, and
any or all amendments to said registration statement (including post-effective
amendments), and to file or cause to be filed 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 the full
power and authority to do and perform each and every act and thing requisite
and necessary to be done in and about the foregoing, as to all intents and
purposes as each of them might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements on the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
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Name Title Date
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/s/ ERIC J. KUHN President, Chairman of the Board of February 16, 2000
------------------------- Directors and Chief Executive Officer
Eric J. Kuhn (Principal Executive Officer)
/s/ TIMOTHY J. LEVY Executive Vice President, Development and February 16, 2000
------------------------ Director
Timothy J. Levy
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/s/ RICHARD HOZIK Chief Financial Officer and Director February 16, 2000
------------------------- (Principal Financial and Accounting Officer)
Richard Hozik
/s/ JONATHAN N. GRAYER Director February 16, 2000
--------------------------
Jonathan N. Grayer
/s/ ALLEN L. MORGAN Director February 16, 2000
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Allen L. Morgan
/s/ ANDREW J. OLESZCZUK Director February 16, 2000
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Andrew J. Oleszczuk
/s/ GENE RIECHERS Director February 16, 2000
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Gene Riechers
/s/ JAMES S. ULSAMER Director February 16, 2000
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James S. Ulsamer
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ITEM 8. EXHIBITS.
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EXHIBIT
NO. DESCRIPTION
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4.1 Specimen Certificate of the Registrant's Common Stock (incorporated by reference
hereto to Exhibit 4.1 of the Company's Registration Statement on Form S-1/A, File
No. 333-89049).
4.2 Fourth Amended and Restated Investor Rights Agreement (incorporated by
reference hereto to Exhibit 4.2 to the Company's Registration Statement on Form
S-1/A, File No. 333-89049).
4.3 Registration Rights Agreement with Campus Pipeline dated as of April 27, 1999
(incorporated by reference hereto to Exhibit 4.3 to the Company's Registration
Statement on Form S-1/A, File No. 333-89049).
4.4 Employee Stock Purchase Plan (incorporated by reference hereto to Exhibit 10.11
to the Company's Registration Statement on Form S-1/A, File No. 333-89049).
5.1 Opinion of Shaw Pittman, counsel to Registrant.
23.1 Consent of Shaw Pittman, counsel to Registrant (included in Exhibit 5.1 hereto).
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EXHIBIT 5.1
February 16, 2000
VarsityBooks.com Inc.
2020 K Street, NW, 6th Floor
Washington, D.C. 20037
Ladies and Gentlemen:
We have acted as counsel for VarsityBooks.com Inc., a Delaware corporation
(the "Company"), in connection with preparation and filing by the Company with
the Securities and Exchange Commission of the Registration Statement on Form S-1
(Registration number 333-_____) under the Securities Act of 1933, as amended
(the "Registration Statement"), relating to the sale, from time to time, by the
Company in the manner described in the prospectus (the "Prospectus") which forms
a part of the Registration Statement, of up to an aggregate of $5,000,000 of
common stock, par value $.0001 per share, of the Company (the "Common Stock").
Based upon our examination of the originals or copies of such documents,
corporate records, certificates of officers of the Company and such other
instruments as we have deemed necessary, and upon the Delaware General
Corporation Law, the applicable provisions of the Delaware Constitution and the
reported judicial decisions interpreting the laws, all as presently in effect,
we are of the opinion that the shares of Common Stock to be sold by the Company
in the manner described in the Prospectus under the caption "Plan Information"
has been duly authorized for issuance by the Company and, upon issuance and
delivery in accordance with the terms described in the Prospectus, will be
validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Sincerely,
/s/ SHAW PITTMAN
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Shaw Pittman
