-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, D1ZeAXGf5RU5onHqgSEYa2RYeaAYbXxu383Wpa0QeV6cxIaMDR3uhQkzFTw3jaRb fGh+zrSDrBE3NAx1WuS8Jg== 0000891618-99-005601.txt : 19991210 0000891618-99-005601.hdr.sgml : 19991210 ACCESSION NUMBER: 0000891618-99-005601 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19991209 EFFECTIVENESS DATE: 19991209 FILER: COMPANY DATA: COMPANY CONFORMED NAME: VA LINUX SYSTEMS INC CENTRAL INDEX KEY: 0001096199 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRONIC COMPUTERS [3571] IRS NUMBER: 770399299 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-92391 FILM NUMBER: 99771114 BUSINESS ADDRESS: STREET 1: 1382 BORDEAUX DR CITY: SUNNYVALE STATE: CA ZIP: 94089 BUSINESS PHONE: 4085428000 MAIL ADDRESS: STREET 1: 1382 BORDEAUX DR CITY: SUNNYVALE STATE: CA ZIP: 94089 S-8 1 FORM S-8 1 As filed with the Securities and Exchange Commission on December 9, 1999 Registration No. 333-88687 ================================================================================ 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)
Delaware 77-0399299 - ------------------------ --------------------------------------- (State of Incorporation) (I.R.S. Employer Identification Number)
1382 Bordeaux Drive Sunnyvale, California 94089 (Address of Principal Executive Offices) --------------------------------------------- 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 ================================================================================ 2 ================================================================================
CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------------------------------------------------------------ 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 - ------------------------------------------------------------------------------------------------------------------------------------ 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
- ---------- (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. ================================================================================ 3 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 II-1 4 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.
EXHIBIT NUMBER DESCRIPTION -------- -------------------------------------------------------------- 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)
* Incorporated by reference from VA Linux, Inc.'s Registration Statement on Form S-1 (No. 333-88687) II-2 5 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. II-3 6 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 ------------------------------------ Larry M. Augustin, President and Chief Executive Officer II-4 7 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.
SIGNATURE TITLE --------- ----- /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 - ------------------------------ Jeffry R. Allen /s/ CAROL BARTZ Director - ------------------------------ Carol Bartz /s/ DOUGLAS LEONE Director - ------------------------------ Douglas Leone /s/ ERIC S. RAYMOND Director - ------------------------------ Eric S. Raymond /s/ CAROL REDFIELD Director - ------------------------------ Carol Redfield
II-5 8 INDEX TO EXHIBITS
EXHIBIT NUMBER DESCRIPTION ------- ---------------------------------------------------------------- 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)
* Incorporated by reference from VA Linux, Inc.'s Registration Statement on Form S-1 (No. 333-88687) EX-5.1 2 OPINION OF COUNSEL 1 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 ---------------------------------------- EX-23.1 3 CONSENT OF INDEPENDENT ACCOUNTANT 1 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 - -------------------------------------- ARTHUR ANDERSEN LLP San Jose, California December 9, 1999 -----END PRIVACY-ENHANCED MESSAGE-----