As filed with the Securities and Exchange Commission on October 27, 1998
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
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VALUESTAR CORPORATION
(Exact name of registrant as specified in its charter)
Colorado 84-1202005
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1120A Ballena Blvd.
Alameda, California 94501
(Address of Principal Executive Offices) (Zip Code)
ValueStar Corporation
1992 Incentive Stock Option Plan, as amended
1992 Non-Statutory Stock Option Plan, as amended
1996 Stock Option Plan, as amended
1997 Stock Option Plan, as amended
1997 Employee Stock Compensation Plan
Stock Options Agreements between the Registrant and Three Directors
(Full title of the Plans)
James Stein
President and Chief Executive Officer
VALUESTAR CORPORATION
1120A Ballena Blvd.
Alameda, California 94501
(Name and address of agent for service)
Telephone Number (510) 814-7070
(Telephone number, including area code, of agent for service)
Copy to:
Bruce P. Johnson, Esq.
VENTURE COUNSEL ASSOCIATES, LLP
1999 Harrison Street, Suite 1300
Oakland, California 94612
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<PAGE>
This Registration Statement shall become effective immediately upon filing with
the Securities and Exchange Commission, and sales of the registered securities
will thereafter be effected upon option exercises under the 1992 Incentive Stock
Option Plan, under which 250,000 shares of Common Stock are available; the 1992
Non-Statutory Stock Option Plan, under which 235,000 shares of Common Stock are
available; the 1996 Stock Option Plan, under which 300,000 shares of Common
Stock are available; the 1997 Stock Option Plan, under which 500,000 shares of
Common Stock are available; and the 1997 Employee Stock Compensation Plan, under
which 1,100 shares of Common Stock are available (collectively, the "Plans");
and three stock option agreements between the registrant and three of the
registrant's Directors, under which 200,000 shares of Common Stock are
available.
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CALCULATION OF REGISTRATION FEE
================================================================================
Proposed Proposed
Number of Maximum Maximum Amount
Title of Shares Aggregate Aggregat of
Securities to to be Offering Offering Registration
be Registered Registered Price(1) Price(1) Fee
================================================================================
Common Stock, 1,486,100 $0.74269 $1,103,715 $307.00
$.00025 par
value per share
================================================================================
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457. The price per share and aggregate
offering price are based upon (a) the actual exercise price for shares
subject to outstanding options previously granted under the Plans, (b) the
average of the bid and asked prices of registrant's Common Stock on
October 26, 1998 as reported in the over-the-counter market on the
National Association of Securities Dealers OTC Electronic Bulletin Board
System for shares issuable under options available for grant under the
Plans, and (c) the actual exercise price for shares subject to outstanding
options granted outside the Plans. The following chart shows the
calculation of the registration fee.
<TABLE>
<CAPTION>
NUMBER OF SHARES OFFERING PRICE PER AGGREGATE OFFERING
TYPES OF SHARES SHARE PRICE
<S> <C> <C> <C>
Shares subject to
outstanding stock options
under the Plans 879,383 $0.60948(i) $535,967
Shares issuable under Plan
options available for grant 406,717 $0.78125 $317,748
Shares subject to
outstanding stock options
outside the Plans 200,000 $1.25 $250,000
<FN>
(i) Weighted average exercise price based on stock option exercise prices
ranging from $0.40 to $1.00 per share.
</FN>
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed in (a) through (d) below are incorporated by
reference in this Registration Statement.
(a) The registrant's annual report on Form 10-KSB for the fiscal year
ended June 30, 1998, which was filed with the Securities and Exchange Commission
(the "Commission") on September 21, 1998.
(b) All other reports filed by the registrant since June 30, 1998, with
the Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act").
(c) The description of securities to be registered contained in Item 8
of Part I of the registrant's Registration Statement on Form 10-SB filed with
the Commission under the Exchange Act on May 29, 1997, including any amendment
or report filed for the purpose of updating such description.
(d) 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 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.
Not applicable.
Item 6. Indemnification of Directors and Officers.
As permitted by Colorado law, the registrant's Articles of
Incorporation provide that no director of the registrant shall be personally
liable to the registrant or any shareholder thereof for monetary damages for
breach of his fiduciary duty as a director, except liability (i) for any breach
3
<PAGE>
of a Director's duty of loyalty to the registrant or its shareholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) for acts in violation of Section 7-108-403 of
the Colorado Business Corporation Act, as it now exists or may be amended, or
(iv) for any transaction from which the Director derives an improper personal
benefit.
As permitted by Colorado law, the registrant's Articles of
Incorporation also provide that the registrant will indemnify its officers,
directors, employees and agents against attorneys' fees and other expenses and
liabilities they incur to defend, settle or satisfy any civil or criminal action
brought against them arising out of their association with or activities on
behalf of the registrant as long as, in any such action, they acted in good
faith and in his or her official capacity acted in a manner reasonably believed
to be in the best interests of the registrant or in all other cases his or her
conduct was not opposed to the registrant's best interests. However no
indemnification shall be made if a person is adjudged to be liable for
negligence or misconduct in the performance of his duty to the registrant. The
registrant may also bear the expenses of such litigation for any such persons
upon their promise to repay such sums if it is ultimately determined that they
are not entitled to indemnification. Such expenditures could be substantial and
may not be recouped, even if the registrant is so entitled.
Item 7. Exemption from Registration Claimed.
Not applicable.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.)
4
<PAGE>
Item 8. Exhibits.
Exhibit Number Exhibit Description
- -------------- -----------------------------------------------------
5 Opinion of Venture Counsel Associates, LLP as to the
legality of the securities being registered.
10.1 1992 Incentive Stock Option Plan, as amended (filed
as Exhibit 6.2 to the registrant's registration
statement on Form 10-SB as filed on May 29, 1997, and
incorporated by reference herein).
10.2 1992 Non-Statutory Stock Option Plan, as amended
(filed as Exhibit 6.3 to the registrant's
registration statement on Form 10-SB as filed on May
29, 1997, and incorporated by reference herein).
10.3 1996 Stock Option Plan, as amended (filed as Exhibit
6.7 to the registrant's registration statement on
Form 10-SB as filed on May 29, 1997, and incorporated
by reference herein).
10.4 1997 Stock Option Plan (filed as Exhibit 6.8 to the
registrant's registration statement on Form 10-SB as
filed on May 29, 1997, and incorporated by reference
herein).
10.4.1 1997 Stock Option Plan, First Amendment (filed as
Exhibit 10.8.2 to the registrant's annual report on
Form 10-KSB, as filed on September 21, 1998, and
incorporated by reference herein).
10.5 1997 Employee Stock Compensation Plan (filed as
Exhibit 6.9 to the registrant's registration
statement on Form 10-SB as filed on May 29, 1997, and
incorporated by reference herein).
10.6 Form of Non-qualified Stock Option Agreement dated as
of July 6, 1998 between the Company and three
directors covering an aggregate of 200,000 shares
(filed as Exhibit 10.10 to the registrant's annual
report on Form 10-KSB, as filed on September 21,
1998, and incorporated by reference herein).
23.1 Consent of Moss Adams LLP, Independent Auditors.
23.2 Consent of Venture Counsel Associates, LLP (contained
in the opinion of counsel filed as Exhibit 5 to this
Registration Statement).
24 Power of Attorney (set forth on the signature page of
this Registration Statement).
5
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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 of 1933, as amended (the "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 in 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 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 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 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.
6
<PAGE>
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 Alameda, State of California, on October 26, 1998.
VALUESTAR CORPORATION,
a Colorado corporation
By: /s/ James Stein
---------------------------------
James Stein
President and Chief Executive Officer
7
<PAGE>
POWER OF ATTORNEY AND ADDITIONAL SIGNATURES
Each person whose signature appears below constitutes and appoints
James Stein and James Barnes, and each of them, his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments to this Registration Statement,
including post-effective amendments, and to file 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 full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or their substitutes, may lawfully do or
cause to be done by virtue thereof.
<TABLE>
Further, pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ James Stein President, Chief Executive Officer October 26, 1998
- --------------------------------- and Director (Principal Executive
James Stein Officer)
/s/ Michael J. Kelly Controller October 26, 1998
- ------------------------------- (Principal Accounting Officer)
Michael J. Kelly
/s/ James A. Barnes Treasurer, Secretary and Director October 26, 1998
- ------------------------------ (Principal Financial Officer)
James A. Barnes
/s/ Jerry E. Polis Director October 26, 1998
- ---------------------------------
Jerry E. Polis
</TABLE>
<PAGE>
Exhibit List
Exhibit Number Exhibit Description
- -------------- -----------------------------------------------------
5 Opinion of Venture Counsel Associates, LLP as to the
legality of the securities being registered.
10.1 1992 Incentive Stock Option Plan, as amended (filed
as Exhibit 6.2 to the registrant's registration
statement on Form 10-SB as filed on May 29, 1997, and
incorporated by reference herein).
10.2 1992 Non-Statutory Stock Option Plan, as amended
(filed as Exhibit 6.3 to the registrant's
registration statement on Form 10-SB as filed on May
29, 1997, and incorporated by reference herein).
10.3
1996 Stock Option Plan, as amended (filed as Exhibit
6.7 to the registrant's registration statement on
Form 10-SB as filed on May 29, 1997, and incorporated
by reference herein).
10.4 1997 Stock Option Plan (filed as Exhibit 6.8 to the
registrant's registration statement on Form 10-SB as
filed on May 29, 1997, and incorporated by reference
herein).
10.4.1 1997 Stock Option Plan, First Amendment (filed as
Exhibit 10.8.2 to the registrant's annual report on
Form 10-KSB, as filed on September 21, 1998, and
incorporated by reference herein).
10.5 1997 Employee Stock Compensation Plan (filed as
Exhibit 6.9 to the registrant's registration
statement on Form 10-SB as filed on May 29, 1997, and
incorporated by reference herein).
10.6 Form of Non-qualified Stock Option Agreement dated as
of July 6, 1998 between the Company and three
directors covering an aggregate of 200,000 shares
(filed as Exhibit 10.10 to the registrant's annual
report on Form 10-KSB, as filed on September 21,
1998, and incorporated by reference herein).
23.1 Consent of Moss Adams LLP, Independent Auditors.
23.2 Consent of Venture Counsel Associates, LLP (contained
in the opinion of counsel filed as Exhibit 5 to this
Registration Statement).
24 Power of Attorney (set forth on the signature page of
this Registration Statement).
9
EXHIBIT 5
VENTURE COUNSEL ASSOCIATES, LLP
Attorneys at Law
Lake Merritt Plaza Building
1999 Harrison Street, Suite 1300
Oakland, California 94612
Telephone (510) 273-8750
Facsimile (510) 834-7440
October 26, 1998
ValueStar Corporation
1120A Ballena Blvd.
Alameda, CA 94501
Re: Registration Statement on Form S-8
Gentlemen:
As outside counsel to ValueStar Corporation, a Colorado corporation
(the "Company"), we have been asked by the Company to review the Registration
Statement on Form S-8 to be filed by the Company with the Securities and
Exchange Commission on, or about, October 26, 1998 (the "Registration
Statement"). This is in connection with the registration under the Securities
Act of 1933, as amended, of one million four hundred eighty-six thousand one
hundred (1,486,100) shares of the Company's Common Stock, $0.00025 par value per
share (the "Plan Shares"), none of which are presently issued and outstanding.
As your outside counsel, we have examined the proceedings and such
other documents as we have deemed necessary relating to the issuance of 250,000
Plan Shares to be issued under the Company's 1992 Incentive Stock Option Plan;
235,000 Plan Shares to be issued under the Company's 1992 Non-Statutory Stock
Option Plan; 300,000 Plan Shares to be issued under the Company's 1996 Stock
Option Plan; 500,000 Plan Shares to be issued under the Company's 1997 Stock
Option Plan; and 1,100 Plan Shares to be issued under the Company's 1997
Employee Stock Compensation Plan (collectively, the "Plans"); and an aggregate
of 200,000 shares to be issued under three stock option agreements, each dated
July 6, 1998 (the "Option Agreements"), outside the Plans.
In rendering this opinion, we have assumed, without investigation, the
genuineness of all signatures; the correctness of all certificates; the
authenticity of all documents submitted to us as originals; the conformity to
original documents of all documents submitted to us as certified,
<PAGE>
ValueStar Corporation
October 26, 1998
Page 2
Re: Registration Statement on Form S-8
photostatic or facsimile copies and the authenticity of the originals of such
copies; and the accuracy and completeness of all records made available to us
by, or on behalf of, the Company. In addition, we have assumed, without
investigation, the accuracy of the representations and statements as to factual
matters made by the Company, its officers and employees, and public officials.
Nothing has come to our attention, however, which would lead us to question the
accuracy or completeness of such representations, warranties or statements. With
respect to 300,000 of the Plan Shares to be issued pursuant to the 1997 Stock
Option Plan, we have assumed for purposes of the opinion expressed below that
the shareholders will approve the amendment to the 1997 Stock Option Plan
previously adopted by the Board of Directors, increasing the number of shares
issuable thereunder from 200,000 to 500,000 shares, in accordance with the terms
of the 1997 Stock Option Plan.
In rendering the opinion hereinafter expressed, we have examined and
relied upon such documents and instruments as we have deemed necessary and
appropriate. It is our opinion that (i) the Plan Shares, when subsequently
issued upon payment therefor in accordance with the terms of the 1992 Incentive
Stock Option Plan; the 1992 Non-Statutory Stock Option Plan; the 1996 Stock
Option Plan; the 1997 Stock Option Plan; the 1997 Employee Stock Compensation
Plan, and the Option Agreements, as applicable, will be validly issued, fully
paid and nonassessable.
We are admitted to practice law only in the State of California, and we
express no opinion concerning any law other than the law of the State of
California. This opinion is intended solely for your benefit and is not to be
relied upon by any other person, firm, or entity without our prior written
consent.
We consent to the use of this opinion as an Exhibit to the Registration
Statement, and further consent to all references to this Firm in the
Registration Statement and any amendments thereto.
Very truly yours,
/s/ Venture Counsel Associates, LLP
-------------------------------------------
VENTURE COUNSEL ASSOCIATES, LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement on Form S-8 on our report, dated August 20, 1998, on our audits of the
consolidated financial statements of ValueStar Corporation as of June 30, 1998,
and for each of the two years ended June 30, 1998, which report is included in
the Company's Annual Report on Form 10-KSB for the year ended June 30, 1998.
/s/ MOSS ADAMS LLP
Santa Rosa, California
October 26, 1998
