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As filed with the Securities and Exchange Commission on September 6, 2000
Registration No. 333-_______________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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REGISTRATION STATEMENT
ON FORM S-8
UNDER
THE SECURITIES ACT OF 1933
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WEBVAN GROUP, INC.
(Exact name of Registrant as specified in its charter)
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<S> <C> <C>
310 Lakeside Drive
Delaware Foster City, California 94404 77-0446411
(State of Incorporation) (Address of principal executive offices, including zip code) (IRS Employer Identification Number)
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HomeGrocer.com, Inc. 1997 Incentive Compensation Plan
HomeGrocer.com, Inc. 1999 Stock Incentive Plan
(Full title of the plans)
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Robert H. Swan
Chief Financial Officer
WEBVAN GROUP, INC.
310 Lakeside Drive
Foster City, California 94404
(650) 627-3000
(Name, address and telephone number of agent for service)
Copy to:
J. Robert Suffoletta, Esq.
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304-1050
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CALCULATION OF REGISTRATION FEE
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================================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED REGISTERED SHARE (1) PRICE REGISTRATION FEE
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Common Stock, $0.0001 par value, to be issued 6,025,880 $3.14 $18,921,263.20 $4,995.21
under the HomeGrocer.com, Inc. 1997 Incentive
Compensation Plan
Common Stock, $0.0001 par value, to be issued 4,842,225 $4.68 $22,661,613.00 $5,982.67
under the HomeGrocer.com, Inc. 1999 Stock
Incentive Plan
TOTAL: 10,868,105 _______ $41,582,876.20 $10,977.88
================================================================================================================================
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(1) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee based on the weighted average price
(rounded to the nearest whole cent) of the outstanding options as of
September 5, 2000.
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WEBVAN GROUP, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Information Incorporated by Reference.
There are hereby incorporated by reference in this Registration Statement
the following documents and information heretofore filed with the Securities and
Exchange Commission:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999.
(b) The Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31, 2000, and June 30, 2000.
(c) The description of the Company's common stock contained in the
Company's Registration Statement on Form 8-A (File No. 000-27541) filed on
October 4, 1999, and any further amendment or report filed hereafter for
the purpose of updating any such description.
(d) The Company's Current Report on Form 8-K filed on July 25, 2000.
(e) The Company's Prospectus dated August 3, 2000, forming part of
the Registration Statement on Form S-4 (File No. 333-42244) filed on August
4, 2000.
(f) All documents subsequently filed by the Company pursuant to
Sections 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 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 part
hereof from the date of filing such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Counsel for the Company, Wilson Sonsini Goodrich & Rosati, P.C., 650 Page
Mill Road, Palo Alto, California 94304, has rendered an opinion as to the Common
Stock offered hereby. As of September 5, 2000, certain members of Wilson Sonsini
Goodrich & Rosati, P.C., and investment partnerships in which such persons are
partners, beneficially owned approximately 2.1 million shares of the Company's
common stock.
Item 6. Indemnification of Directors and Officers.
The Company's Certificate of Incorporation limits the liability of
directors to the maximum extent permitted by Delaware law. Delaware law provides
that directors of a corporation will not be personally liable for monetary
damages for breach of their fiduciary duties as directors, except liability for:
(i) any
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breach of their duty of loyalty to the corporation or its stockholders; (ii)
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law; (iii) unlawful payments of dividends or unlawful stock
repurchases or redemption; or (iv) any transaction from which the director
derived an improper personal benefit. This limitation of liability does not
apply to liabilities arising under the federal securities laws and does not
affect the availability of equitable remedies such as injunctive relief or
rescission.
The Company's Certificate of Incorporation and Bylaws provide that the
Company shall indemnify the Company's directors and executive officers and may
indemnify other officers and employees and the Company's agents to the fullest
extent permitted by law. The Company believes that indemnification under the
Company's Bylaws covers at least negligence and gross negligence on the part of
indemnified parties. The Company's Bylaws also permit us to secure insurance on
behalf of any officer, director, employee or other agent for any liability
arising out of his or her actions in that capacity, regardless of whether the
Bylaws would permit indemnification. The Company has director and officer
liability insurance that covers matters, including matters arising under the
Securities Act.
The Company has entered into agreements to indemnify the Company's
directors and executive officers, in addition to indemnification provided for in
the Company's Bylaws. These agreements, among other things, provide for
indemnification of the Company's directors and executive officers for judgments,
fines, settlement amounts and expenses, including attorneys' fees, incurred by
any of these persons in any action or proceeding, including any action by or in
the right of Company, arising out of that person's services as a director or
executive officer of the Company's, any subsidiary of the Company's or any other
company or enterprise to which the person provides services at the Company's
request. The Company believes that these provisions and agreements are necessary
to attract and retain qualified persons as directors and executive officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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Exhibit
Number
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4.1* HomeGrocer.com, Inc. 1997 Incentive Compensation Plan
4.2* HomeGrocer.com, Inc. 1999 Stock Incentive Plan
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C.
23.1 Consent of Independent Auditors
23.2 Consent of Counsel (contained in Exhibit 5.1)
25.1 Power of Attorney (See page 4)
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* Incorporated by reference to HomeGrocer.com, Inc.'s Registration
Statement on Form S-1 (File No. 333-93015), as amended, declared
effective by the Securities and Exchange Commission on March 9, 2000.
Item 9. Undertakings.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to include any
material information with respect to the plan of
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distribution not previously disclosed in the Registration Statement or any
material change to such information 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 Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of a report by the Company
pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) 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 may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Securities and Exchange Commission
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 Company of expenses
incurred or paid by a director, officer or controlling person of the Company 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 Company 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 Securities Act and will be governed by the final
adjudication of such issue.
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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 Foster City, State of California, on September 5,
2000
WEBVAN GROUP, INC.
By: /s/ ROBERT H. SWAN
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Robert H. Swan
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints George T. Shaheen and Robert H. Swan,
jointly and severally, his attorneys-in-fact, each with full power of
substitution, for him in any and all capacities, to sign any amendments to this
Registration Statement on Form S-8, and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his substitute or substitutes, may 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 on September 5, 2000.
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Signature Title
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/s/ LOUIS H. BORDERS Chairman of the Board of Directors
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Louis H. Borders
/s/ GEORGE T. SHAHEEN President, Chief Executive Officer and Director
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George T. Shaheen
/s/ ROBERT H. SWAN Chief Financial Officer (Principal Financial Officer)
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Robert H. Swan
/s/ DAVID M. BEIRNE Director
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David M. Beirne
/s/ CHRISTOS M. COTSAKOS Director
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Christos M. Cotsakos
/s/ TIM KOOGLE Director
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Tim Koogle
/s/ MICHAEL J. MORITZ Director
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Michael J. Moritz
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INDEX TO EXHIBITS
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Exhibit
Number
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4.1* HomeGrocer.com, Inc. 1997 Incentive Compensation Plan
4.2* HomeGrocer.com, Inc. 1999 Stock Incentive Plan
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C.
23.1 Consent of Independent Auditors
23.2 Consent of Counsel (contained in Exhibit 5.1)
25.1 Power of Attorney (See page 4)
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* Incorporated by reference to HomeGrocer.com, Inc.'s Registration Statement
on Form S-1 (File No. 333-93015), as amended, declared effective by the
Securities and Exchange Commission on March 9, 2000.
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