As filed with the Securities and Exchange Commission June 1, 2004
File No. ___________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
BUYERS UNITED, INC.
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(Exact name of registrant as specified in its charter)
Delaware 87-0528557
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(State or Other Jurisdiction of (IRS Employer
Incorporation or Organization) Identification No.)
14870 Pony Express Road, Bluffdale, Utah 84065
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(Address of Principal Executive Offices)
Long Term Stock Incentive Plan, March 11, 1999
Director Stock Option Plan, June 17 2003
Employee Common Stock Options
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(Full title of the plan)
Paul Jarman
14870 Pony Express Road, Bluffdale, Utah 84065
(801) 320-3300
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(Name, address and telephone number of agent for service)
Copies to:
Mark E. Lehman, Esq.
Parsons Behle & Latimer
One Utah Center
201 South Main Street, Suite 1800, Salt Lake City, Utah 84111
(801) 532-1234/ (801) 536-6111 fax
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Securities Title of to be Offering Price Aggregate Registration
to be registered Plan Registered Per Share* Offering Price* Fee
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Common Stock Long Term Stock 1,200,000 $3.078 $3,693,160 $467.92
Incentive Plan
Common Stock Director Stock 1,000,000 $2.49 $2,490,000 $315.48
Option Plan
Common Stock Employee Common Stock 361,799 $2.68 $970,203 $122.92
Options
Total 2,561,799 $7,153,363 $906.32
* Estimates of the proposed maximum offering price per share and proposed
maximum aggregate offering price solely for calculating the registration fee
pursuant to Rule 457(c) and (h) of the Securities Act of 1933, and based on the
average bid and asked price of the registrant's common stock as of May 27, 2004,
a date within five business days prior to the date of filing of this
registration statement.
Part I.
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
The document(s) containing information specified by Part I of this Form
S-8 Registration Statement (the "Registration Statement") and Rule 428(b)(1)
promulgated by the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Securities Act") have been or will
be sent or given to participants in the plans listed on the cover of this
Registration Statement and the holders of the other employee stock options
identified on the cover. Such document(s) are not being filed with the
Commission but constitute (along with the documents incorporated by reference
into the Registration Statement pursuant to Item 3 of Part II hereof) a
prospectus which meets the requirements of Section 10(a) of the Securities Act.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by Buyers United, Inc. with the
Securities and Exchange Commission (the "Commission") are hereby incorporated by
reference:
1. Prospectus dated April 22, 2004 filed with the Commission on
April 22, 2004 under Rule 424(b);
2. Quarterly report on Form 10-Q for the quarter ended March 31,
2004, as filed with the Commission on May 17, 2004;
3. Definitive Proxy Statement on Schedule 14A as filed with the
Commission on May 14, 2004;
4. Current Report on Form 8-K as filed with the Commission on May
14, 2004;
5. Annual Report on Form 10-KSB as filed with the Commission on
March 30, 2004;
6. Current Report on Form 8-K as filed with the Commission on
March 17, 2004;
7. Description of the Common Stock of the Company included in
Amendment No. 1 of the Company's Registration Statement on
Form S-2, Registration No. 333-114302, as filed with the
Commission on April 15, 2004.
8. All other reports filed pursuant to Sections 13(a) or 15(d) of
the Securities Exchange Act of 1934 for the past twelve
months.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered hereunder have been sold or which
deregisters all securities then remaining unsold, shall be deemed incorporated
in this Registration Statement by reference and to be a part hereof from the
date of the filing of such documents.
Item 4. Description of Securities
Not applicable.
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Item 5. Interests of Named Experts and Counsel
Not applicable
Item 6. Indemnification of Directors and Officers
Buyers United's Charter provides that, to the fullest extent that
limitations on the liability of directors and officers are permitted by the
Delaware General Corporation Law (the "DGCL"), no director or officer of Buyers
United shall have any liability to Buyers United or its stockholders for
monetary damages. The DGCL provides that a corporation's charter may include a
provision which restricts or limits the liability of its directors or officers
to the corporation or its stockholders for money damages except: (1) to the
extent that it is provided that the person actually received an improper benefit
or profit in money, property or services, for the amount of the benefit or
profit in money, property or services actually received, or (2) to the extent
that a judgment or other final adjudication adverse to the person is entered in
a proceeding based on a finding in the proceeding that the person's action, or
failure to act, was the result of active and deliberate dishonesty and was
material to the cause of action adjudicated in the proceeding. Buyers United's
Charter and Bylaws provide that Buyers United [shall] indemnify and advance
expenses to its currently acting and its former directors to the fullest extent
permitted by the DGCL and that Buyers United shall indemnify and advance
expenses to its officers to the same extent as its directors and to such further
extent as is consistent with law.
The Charter and Bylaws provide that Buyers United will indemnify its
directors and officers and may indemnify employees or agents of Buyers United to
the fullest extent permitted by law against liabilities and expenses incurred in
connection with litigation in which they may be involved because of their
offices with Buyers United. However, nothing in the Charter or Bylaws of Buyers
United protects or indemnifies a director, officer, employee or agent against
any liability to which he would otherwise be subject by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of his office. To the extent that a director has been
successful in defense of any proceeding, the DGCL provides that he shall be
indemnified against reasonable expenses incurred in connection therewith.
Item 7. Exemption from Registration Claimed
Not applicable
Item 8. Exhibits
The following exhibits are attached to this Registration Statement.
Exhibit No. Title of Document
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5.1 Opinion of Parsons Behle & Latimer
10.1 Long Term Stock Incentive Plan (1)
10.2 Director Stock Option Plan
10.3 Form of Employee Common Stock Option (2)
23.1 Consent of Parsons Behle & Latimer (contained in their opinion
filed as Exhibit 5.1 to this Registration Statement
23.2 Consent of Crowe Chizek and Company LLC
(1) This document was filed as an exhibit to the Registration Statement on Form
10-SB filed by Buyers United with the Commission on August 3, 1999, and is
incorporated herein by this reference.
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(2) This document was filed as an exhibit to the annual report on Form 10-KSB
for 2001 filed by Buyers United with the Commission on April 16, 2002, and is
incorporated herein by this reference.
Item 9. Undertakings
A. SUBSEQUENT DISCLOSURE.
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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 this Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided however, that the undertakings set forth in paragraphs (i) and (ii)
above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed or furnished to the Commission by the Company pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered herein, 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. INCORPORATION BY REFERENCE.
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company'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 this
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.
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C. TRANSMIT CERTAIN MATERIAL.
The Company hereby undertakes to deliver or cause to be delivered with
the prospectus to each employee to whom the prospectus is sent or given a copy
of the Company's annual report to stockholders for its last fiscal year, unless
such employee otherwise has received a copy of such report in which case the
Company shall state in the prospectus that it will promptly furnish, without
charge, a copy of such report on written request of the employee. If the last
fiscal year of the Company has ended within 120 days prior to the use of the
prospectus, the annual report for the preceding year may be so delivered, but
within such 120 day period the annual report for the last fiscal year will be
furnished to each such employee.
D. INDEMNIFICATION.
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 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, as amended,
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 Draper, State of Utah, on May 28, 2004.
BUYERS UNITED, INC.
By /s/ Theodore Stern, Chief Executive Officer
(Principal Executive Officer)
By /s/ David R. Grow, Chief Financial Officer
(Principal Financial Officer and Principal
Accounting Officer)
Pursuant to the requirements of the Securities Act of 1933, this
registration statement or amendment has been signed below by the following
persons in the capacities and on the dates indicated.
/s/ Theodore Stern, Director Date: May 28, 2004
/s/ Gary Smith, Director Date: May 28, 2004
/s/ Edward Dallin Bagley, Director Date: May 28, 2004
/s/ Steve Barnett, Director Date: May 28, 2004
/s/ Paul Jarman, Director Date: May 28, 2004
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