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As filed with the Securities and Exchange Commission on January 31, 2000
Registration No. 333-_______________
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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, (IRS Employer
including zip code) Identification Number)
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1997 Stock Plan
(Full title of the plans)
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Kevin Czinger
Senior Vice President, Business Development and 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 PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE FEE
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Common Stock, $0.0001 par value, to be
issued under the 1997 Stock Plan 13,046,320 $14.00 $182,648,480 $48,219.20
TOTAL: 13,046,320 $182,648,480 $48,219.20
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(1) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee based on the price of $14.00 per
share, which was the average of the high and low price per share of the
Common Stock as reported on the Nasdaq National Market on January 27,
2000 (the "Market Price").
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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 Registration Statement on Form S-1 (File No.
333-84703) as amended (the "Registration Statement"), filed pursuant to
the Securities Act of 1933, as amended (the "Securities Act"), relating
to the Company's initial public offering of its Common Stock.
(b) The Company's Registration Statement on Form 8-A filed
pursuant to Section 12 of the Securities and Exchange Act 1934 (the
"Exchange Act") on October 4, 1999, and any further amendment or report
filed hereafter for the purpose of updating any such description.
(c) The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended September 30, 1999.
(d) 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 January 28, 2000, certain members of Wilson
Sonsini Goodrich & Rosati, and investment partnerships in which such persons are
partners, beneficially owned 2,068,944 shares or options to purchase 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 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
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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* 1997 Stock Plan, as amended
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 the Registrant's Registration Statement on
Form S-1 (File No. 333-84703), as amended, declared effective by the
Securities and Exchange Commission on November 4, 1999.
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 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
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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 January 28, 2000
WEBVAN GROUP, INC.
By: /s/ KEVIN R. CZINGER
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Kevin R. Czinger
Senior Vice President,
Business Development
and 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 Kevin R. Czinger,
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 January 28, 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
- ---------------------- (Principal Executive Officer)
George T. Shaheen
/s/ KEVIN R. CZINGER Senior Vice President, Business Development and
- ----------------------------- Chief Financial Officer
Kevin R. Czinger (Principal Financial Officer)
/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 Description
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4.1* 1997 Stock Plan, as amended
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 the Registrant's Registration Statement on
Form S-1 (File No. 333-84703), as amended, declared effective by the
Securities and Exchange Commission on November 4, 1999.
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EXHIBIT 5.1
January 28, 2000
Webvan Group, Inc.
310 Lakeside Drive
Foster City, California 94404
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
you with the Securities and Exchange Commission on or about January 31, 2000, in
connection with the registration under the Securities Act of 1933, as amended,
of 13,046,320 shares of Common Stock (the "Shares") to be issued under the
Company's 1997 Stock Plan (the "Plan").
As your legal counsel, we have examined the proceedings taken and are
familiar with the proceedings proposed to be taken by you in connection with the
sale and issuance of the Shares. It is our opinion that the Shares, when issued
and sold in the manner referred to in the Plan, and pursuant to the agreements
which accompany the Plan, as applicable, will be legally and validly issued,
fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to said Registration
Statement and further consent to the use of our name wherever appearing in said
Registration Statement and any amendments thereto.
Sincerely,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ WILSON SONSINI GOODRICH & ROSATI
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EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Webvan Group, Inc. on Form S-8 of our report dated March 5, 1999
(August 5, 1999 as to the second paragraph of Note 1 and as to Note 15 and
September 21, 1999 as to the first paragraph of Note 7), appearing in
Registration Statement No. 333-84703 on Form S-1 of Webvan Group, Inc.
/s/ DELOITTE & TOUCHE LLP
Deloitte & Touche LLP
San Jose, California
January 31, 2000
