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As filed with the Securities and Exchange Commission on January 24, 2000
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
NEOFORMA.COM, INC.
(Exact Name of Registrant as Specified in Its Charter)
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<S> <C>
DELAWARE 77-0424252
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
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NEOFORMA.COM, INC.
3255-7 SCOTT BOULEVARD
SANTA CLARA, CALIFORNIA 95054
(Address of Principal Executive Offices, including Zip Code)
1997 STOCK PLAN
1999 EQUITY INCENTIVE PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
NON-PLAN OPTIONS
(Full Titles of the Plans)
FREDERICK J. RUEGSEGGER
CHIEF FINANCIAL OFFICER
NEOFORMA.COM, INC.
3255-7 SCOTT BOULEVARD
SANTA CLARA, CALIFORNIA 95054
(408) 654-5700
(Name, Address and Telephone Number of Agent for Service)
COPIES TO:
Gordon K. Davidson, Esq.
David K. Michaels, Esq.
Scott J. Leichtner, Esq.
Nina L. Hong, Esq.
Joshua Sun, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
CALCULATION OF REGISTRATION FEE
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================================= ============== ================= =================== ============
PROPOSED
AMOUNT MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED PER SHARE OFFERING PRICE FEE
- --------------------------------- -------------- ----------------- ------------------- ------------
<S> <C> <C> <C> <C>
Common Stock, $0.001 par value 7,838,182(1) $13.00(2) $101,896,366(2) $26,901
Common Stock, $0.001 par value 7,387,696(3) $ 6.53(4) $48,241,655 $12,736
- --------------------------------- -------------- ----------------- ------------------- ------------
TOTAL 15,225,878 $39,637
================================= ============== ================= =================== ============
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(1) Represents the aggregate of 7,088,182 shares available for grant under
the Registrant's 1999 Equity Incentive Plan and 750,000 shares available
for grant under Registrant's 1999 Employee Stock Purchase Plan.
(2) Estimated as of January 24, 2000 pursuant to Rule 457(c) solely
pursuant for the purpose of calculating the registration fee.
(3) Represents certain shares subject to options outstanding as of January
24, 2000 under the Registrant's 1997 Stock Plan and pursuant to non-plan
option agreements.
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(4) Weighted average per share exercise price for such outstanding options
pursuant to Rule 457(h)(1).
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The Registrant's prospectus filed pursuant to Rule 424(b) under
the Securities Act of 1933, as amended (the "Securities Act"),
which contains audited financial statements of the Registrant for
the fiscal year ended December 31, 1998.
(b) The description of the Registrant's common stock contained in the
Registrant's Registration Statement on Form 8-A filed under
Section 12(g) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), including any amendment or report filed for
the purpose of updating such description.
All documents subsequently filed by 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 registered hereby
have been sold or which deregisters 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 documents.
ITEM 4. DESCRIPTION OF SECURITIES - SECURITIES TO BE PURCHASED.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Fenwick & West LLP, Palo Alto, California, will pass upon the validity
of the shares of Common Stock offered hereby. An investment partnership and a
partner of Fenwick & West LLP beneficially own an aggregate of 35,212 shares
of the Registrant's common stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law authorizes a court
to award, or a corporations's board of directors to grant, indemnify to
directors and officers under certain circumstances and subject to certain
limitations. The terms of Section 145 of the Delaware General Corporation Law
are sufficiently broad to permit indemnification under certain circumstances for
liabilities, including reimbursement of expenses incurred, arising under the
Securities Act of 1933.
As permitted by the Delaware General Corporation Law, the Registrant's
amended and restated certificate of incorporation includes a provision that
eliminates the personal liability of its directors for monetary damages for
breach of fiduciary duty as a director, except for liability;
o for any breach of the director's duty of loyalty to the Registrant or
its stockholders;
o for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
O under Section 174 of the Delaware General Corporation Law regarding
unlawful dividends and stock purchases; or
o for any transaction from which the director derived an improper
personal benefit.
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As permitted by the Delaware General Corporation Law, the Registrant's
restated bylaws provide that:
o the Registrant is required to indemnify its directors and officers to
the fullest extent permitted by the Delaware General Corporation Law,
subject to certain very limited exceptions;
o the Registrant is required to advance expenses, as incurred, to its
directors and officers in connection with a legal proceeding to the
fullest extent permitted by the Delaware General Corporation Law,
subject to certain very limited exceptions; and
o the rights conferred in the bylaws are not exclusive.
In addition, the Registrant intends to enter into indemnity agreements
with each of our current directors and officers. These agreements provide for
the indemnification of officers and directors for all expenses and liabilities
incurred in connection with any action or proceeding brought against them by
reason of the fact that they are or were agents of the Registrant.
The Registrant has obtained directors' and officers' insurance to cover
its directors, officers and some of its employees for certain liabilities,
including public securities matters.
Reference is also made to Section 6 of the Underwriting Agreement
relating to Registrant's initial public offering, effected pursuant to
Registrant's Registration Statement on Form S-1 (File No. 333-89077) originally
filed with the Commission on October 15, 1999, as subsequently amended (the
"Form S-1"), which provides for the indemnification of officers, directors and
controlling persons of the Registrant against certain liabilities. The
indemnification provision in the Registrant's amended and restated certificate
of incorporation, restated bylaws and the indemnity agreements entered into
between the Registrant and each of its directors and officers may be
sufficiently broad to permit indemnification of the Registrant's directors and
officers for liabilities arising under the Securities Act.
See also the undertakings set out in response to Item 9.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
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Exhibit
Number Exhibit Title
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4.01 Registrant's Amended and Restated Certificate of
Incorporation, as amended through October 12, 1999
(incorporated herein by reference to Exhibit 3.01 of the
Form S-1).
4.02 Registrant's Form of Second Amended and Restated
Certificate of Incorporation (to be filed immediately
after the closing of Registrant's initial public offering)
(incorporated herein by reference to Exhibit 3.02 of the
Form S-1).
4.03 Registrant's Restated Bylaws (incorporated herein by
reference to Exhibit 3.03 of the Form S-1).
4.04 Form of Specimen Certificate for Registrant's common stock
(incorporated herein by reference to Exhibit 4.01 of the
Form S-1).
4.05 Second Amended and Restated Investors' Rights Agreement,
as amended in November 1999 (incorporated herein by
reference to Exhibit 4.02 of the Form S-1).
4.06 Registrant's 1997 Stock Plan, as amended (incorporated
herein by reference to Exhibit 10.02 of the Form S-1).
4.07 Registrant's 1999 Equity Incentive Plan (incorporated
herein by reference to Exhibit 10.03 of the Form S-1).
4.08 Registrant's 1999 Employee Stock Purchase Plan
(incorporated herein by reference to Exhibit 10.04 of the
Form S-1).
5.01 Opinion of Fenwick & West LLP regarding legality of the
securities being registered.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
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23.02 Consent of Arthur Andersen LLP, independent public
accountants.
24.01 Power of Attorney (see page 5).
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ITEM 9. UNDERTAKINGS.
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 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 thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would
not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
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 statement;
provided, however, that paragraphs (1)(a)(i) and (1)(b)(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 with or furnished to the
Commission by Registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act of 1934 that are incorporated by reference in the registration statement.
(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 of the securities being registered which remain unsold at the termination of
the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 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.
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
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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.
4
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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 Santa Clara, State of California, on this 24th day of
January, 2000.
NEOFORMA.COM, INC.
By: /s/ Robert J. Zollars
---------------------------------
Robert J. Zollars
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Robert J. Zollars and Frederick J.
Ruegsegger, and each of them acting individually, as his attorney-in-fact, each
with full power of substitution, for him in any and all capacities, to sign any
and all 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 any substitute, 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 on January 24, 2000 by the following
persons in the capacities indicated:
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Signature Title
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/s/ Robert J. Zollars President, Chief Executive Officer,
- ------------------------------------ Chairman of the Board and Director
Robert J. Zollars
/s/ Frederick J. Ruegsegger
- ------------------------------------ Chief Financial Officer
Frederick J. Ruegsegger
/s/ David Douglass
- ------------------------------------ Director
David Douglass
/s/ Terence Garnett
- ------------------------------------ Director
Terence Garnett
/s/ Richard D. Helppie
- ------------------------------------ Director
Richard D. Helppie
/s/ Wayne D. McVicker
- ------------------------------------ Director
Wayne D. McVicker
/s/ Andrew Filipowski
- ------------------------------------ Director
Andrew Filipowski
/s/ Madhavan Rangaswami
- ------------------------------------ Director
Madhavan Rangaswami
</TABLE>
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NEOFORMA.COM, INC.
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
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Exhibit
Number Exhibit Title
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5.01 Opinion of Fenwick & West LLP regarding legality of the securities
being registered.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of Arthur Andersen LLP, independent public accountants.
24.01 Power of Attorney (see page 5).
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EXHIBIT 5.01
January 24, 2000
Neoforma.com, Inc.
3255-7 Scott Boulevard
Santa Clara, California 95054
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 January 24, 2000 in
connection with the registration under the Securities Act of 1933, as amended,
of an aggregate of 15,225,878 shares of your Common Stock (the "STOCK") subject
to issuance by you upon the exercise of: (1) stock options granted by you under
your 1997 Stock Plan (the "1997 PLAN"); (2) stock options to be granted by you
under your 1999 Equity Incentive Plan (the "1999 EQUITY PLAN"); (3) purchase
rights to be granted by you under your 1999 Employee Stock Purchase Plan (the
"1999 PURCHASE PLAN"); and (4) stock options ("NON-PLAN OPTIONS")granted by you
outside of the 1997 Plan (the "NON-PLAN AGREEMENTS"). The plans referred to in
clauses (1) through (3) above are collectively referred to in this letter as the
"Plans." In rendering this opinion, we have examined the following:
(1) your registration statement on Form S-1 (File No. 333-89077)
filed with, and declared effective by, the Commission on January
21, 2000, together with the Exhibits filed as a part thereof,
including without limitation, your Amended and Restated
Certificate of Incorporation, Restated Bylaws and each of the
Plans;
(2) your registration statement on Form 8-A (File No. 000-28715),
filed with the Commission on December 30, 1999, together with
the order of effectiveness issued by the Commission therefor on
January 21, 2000;
(3) the Registration Statement, together with the Exhibits filed as
a part thereof;
(4) the Prospectuses prepared in connection with the Registration
Statement;
(5) the minutes of meetings and actions by written consent of the
stockholders and Board of Directors that are contained in your
minute books and the minute books of your predecessor, Neoforma,
Inc., a California corporation ("NEOFORMA CALIFORNIA"), that are
in our possession;
(6) the stock records for you and Neoforma California that you have
provided to us (consisting of a list of stockholders of even
date herewith and a list of option and warrant holders of even
date herewith respecting your capital and of any rights to
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Neoforma.com, Inc.
January 24, 2000
Page 2
purchase capital stock, which you have represented to us are
true and complete as of their dates); and
(7) a Management Certificate addressed to us and dated of even date
herewith executed by the Company containing certain factual and
other representations.
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 authorization, execution and delivery of
all documents where due authorization, execution and delivery are prerequisites
to the effectiveness thereof.
As to matters of fact relevant to this opinion, we have 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 have made no independent
investigation or other attempt to verify the accuracy of any of such information
or to determine the existence or non-existence of any other factual matters;
however, we are not aware of any facts that would cause us to believe that the
opinion expressed herein is not accurate.
We are admitted to practice law in the State of California, 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 the State of California and the existing Delaware General Corporation Law.
In connection with our opinion expressed below, we have assumed that, at
or prior to the time of the delivery of any shares of Stock, the Registration
Statement will have become effective under the Securities Act of 1933, as
amended, that the registration will apply to such shares of Stock and will not
have been modified or rescinded and that there will not have occurred any change
in law affecting the validity or enforceability of such shares of Stock.
Based upon the foregoing, it is our opinion that the 15,225,878 shares
of Stock that may be issued and sold by you upon the exercise of: (1) stock
options granted under the 1997 Plan; (2) stock options to be granted under the
1999 Equity Plan; (3) purchase rights to be granted under the 1999 Purchase
Plan; and (4) Non-Plan Options granted by you, when issued and sold in
accordance with the applicable plan and stock option or purchase agreements
entered into or to be entered into thereunder, and in the manner referred to in
the relevant Prospectus associated with 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.
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Neoforma.com, Inc.
January 24, 2000
Page 3
This opinion speaks only as of its date and we assume no obligation to
update this opinion should circumstances change after the date hereof. This
opinion is intended solely for the your use as an exhibit to the Registration
Statement for the purpose of the above sale of the Stock and is not to be relied
upon for any other purpose.
Very truly yours,
/s/ FENWICK & WEST LLP
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EXHIBIT 23.02
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our reports dated
November 19, 1999 with respect to the financial statements of Neoforma.com, Inc.
included in the Final Registration Statement No. 333-89077 (Form S-1), filed
with the Securities and Exchange Commission on January 24, 2000, and to all
references to our Firm included in this registration statement.
/s/ ARTHUR ANDERSEN LLP
San Jose, California
January 21, 2000
