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As filed with the Securities and Exchange Commission on December 9, 1999
Registration No. 333-88687
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VA LINUX SYSTEMS, INC.
(Exact name of Registrant as specified in its charter)
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Delaware 77-0399299
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<S> <C>
(State of Incorporation) (I.R.S. Employer Identification Number)
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1382 Bordeaux Drive
Sunnyvale, California 94089
(Address of Principal Executive Offices)
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1998 STOCK PLAN
(Full title of the plans)
Larry M. Augustin
President and Chief Executive Officer
VA LINUX SYSTEMS, INC.
1382 Bordeaux Drive
Sunnyvale, California 94089
(Name and address of agent for service)
(408) 542-8600
(Telephone number, including area code, of agent for service)
Copy to:
Judith M. O'Brien
WILSON SONSINI GOODRICH & ROSATI, P.C.
650 Page Mill Road
Palo Alto, California 94304
Telephone: (650) 493-9300
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CALCULATION OF REGISTRATION FEE
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AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE SECURITIES TO TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
BE REGISTERED REGISTERED PER SHARE(1) PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock available for issuance under
the 1998 Stock Plan(1) 9,150,226 $ 3.09 $28,274,199 $7,465
TOTAL: 9,150,226 $28,274,199 $7,465
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(1) Estimated in accordance with Rule 457(h) promulgated under the Securities
Act of 1933, as amended, solely for the purpose of calculating the amount
of the registration fee based on the weighted average exercise price per
share for options outstanding under the 1998 Stock Plan.
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VA LINUX SYSTEMS, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS 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:
1. The Company's Prospectus filed December 9, 1999 pursuant to Rule
424(b) of the Securities Act of 1933, as amended (the "Securities Act")
relating to the Company's initial public offering of its Common Stock.
2. The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A dated December 3, 1999, filed
pursuant to Section 12 of the Securities Exchange Act of 1934 (the "Exchange
Act"), and any further amendment or report filed hereafter for the purpose of
updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act on or 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 of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the securities being registered by this Registration
Statement will be passed upon for the Company by Wilson Sonsini Goodrich &
Rosati, Professional Corporation, Palo Alto, California. As of the date of this
Registration Statement, WS Investment Company 98B, WS Investment Company 99A and
WS Investment Company 99B, each an investment partnership composed of certain
current and former members of and persons associated with Wilson Sonsini
Goodrich & Rosati, Professional Corporation, in addition to certain current
individual members of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, beneficially own an aggregate of 102,584 shares of VA Linux Systems
common stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145(a) of the Delaware General Corporation Law (the "DGCL")
provides in relevant part that "[a] corporation may indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other
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enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful". With respect to
derivative actions, Section 145(b) of the DGCL provides in relevant part that
"[a] corporation may indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or suit by or
in the right of the corporation to procure a judgment in its favor...[by reason
of his service in one of the capacities specified in the preceding sentence]
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper."
The Eighth Article of the Company's Amended and Restated Certificate of
Incorporation provides for the indemnification of directors to the fullest
extent permissible under Delaware law.
Article VI of the Company's Amended and Restated Bylaws provides for the
indemnification of officers, directors and third parties acting on behalf of the
Company if such person acted in good faith and in a manner reasonably believed
to be in and not opposed to the best interest of the Company, and, with respect
to any criminal action or proceeding, the indemnified party had no reason to
believe his or her conduct was unlawful.
The Company has entered into indemnification agreements with its directors
and executive officers, in addition to indemnification provided for in the
Company's Amended and Restated Bylaws, and intends to enter into indemnification
agreements with any new directors and executive officers in the future.
The Company carries officer and director liability insurance with respect
to certain matters, including matters arising under the Securities Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
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EXHIBIT
NUMBER DESCRIPTION
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4.1* 1998 Stock Plan
5.1 Opinion of counsel as to legality of securities being
registered
23.1 Consent of independent accountant
23.2 Consent of counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (see page II-5)
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* Incorporated by reference from VA Linux, Inc.'s Registration Statement on Form
S-1 (No. 333-88687)
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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 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, 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 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 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
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 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, 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 Sunnyvale, State of California, on December 8,
1999.
VA LINUX SYSTEMS, INC.
By: /s/ Larry M. Augustin
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Larry M. Augustin, President and
Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Larry M. Augustin and Todd B. Schull, and
each of them, their true and lawful attorneys and agents, with full power of
substitution, each with power to act alone, to sign and execute on behalf of the
undersigned any amendment or amendments to this Registration Statement on Form
S-8 and to perform any acts necessary in order to file such amendments, and each
of the undersigned does hereby ratify and confirm all that said attorneys and
agents, or their or his substitutes, shall do or cause to be done by virtue
hereof. Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed on December 8, 1999 by the following persons in the
capacities indicated.
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SIGNATURE TITLE
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/s/ LARRY M. AUGUSTIN Director, President and Chief Executive Officer
- ------------------------------ (Principal Executive Officer)
Larry M. Augustin
/s/ TODD B. SCHULL Chief Financial Officer (Principal Financial
- ------------------------------ and Accounting Officer)
Todd B. Schull
/s/ JEFFRY R. ALLEN Director
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Jeffry R. Allen
/s/ CAROL BARTZ Director
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Carol Bartz
/s/ DOUGLAS LEONE Director
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Douglas Leone
/s/ ERIC S. RAYMOND Director
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Eric S. Raymond
/s/ CAROL REDFIELD Director
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Carol Redfield
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INDEX TO EXHIBITS
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EXHIBIT
NUMBER DESCRIPTION
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4.1* 1998 Stock Plan
5.1 Opinion of counsel as to legality of securities being registered
23.1 Consent of independent accountant
23.2 Consent of counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (see page II-5)
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* Incorporated by reference from VA Linux, Inc.'s Registration Statement on Form
S-1 (No. 333-88687)
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EXHIBIT 5.1
December 9, 1999
VA Linux Systems, Inc.
1382 Bordeaux Drive
Sunnyvale, California 94089
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 December 9, 1999 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended (the "Act"), of 9,150,226 shares of your
Common Stock authorized but unissued under your 1998 Stock Plan. Such shares of
Common Stock are referred to herein as the "Shares" and the 1998 Stock Plan is
referred to herein as the "Plan." As your counsel in connection with this
transaction, we have examined the proceedings taken and are familiar with the
proceedings proposed to be taken by you in connection with the issuance and sale
of the Shares pursuant to the Plan.
It is our opinion that, upon completion of the actions being taken, or
contemplated by us as your counsel to be taken by you prior to the issuance of
the Shares pursuant to the Registration Statement and the Plans and upon
completion of the actions being taken in order to permit such transactions to be
carried out in accordance with the securities laws of the various states where
required, the Shares will be legally and validly issued, fully-paid and
non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in the
Registration Statement and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/Wilson Sonsini Goodrich & Rosati
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1998 Stock Plan of our report with respect to the
consolidated financial statements and schedule of VA Linux Systems, Inc.
included in the Final Prospectus, filed with the Securities and Exchange
Commission on December 9, 1999.
/s/ Arthur Andersen LLP
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ARTHUR ANDERSEN LLP
San Jose, California
December 9, 1999
