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As filed with the Securities and Exchange Commission on August 19, 1998
Registration No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
INTERVU INC.
(Exact name of registrant as specified in its charter)
DELAWARE 33-0680870
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
6815 FLANDERS DRIVE, SUITE 200
SAN DIEGO, CALIFORNIA 92121
(619) 623-8400
(Address of principal executive offices, including zip code,
and telephone number)
1996 STOCK PLAN OF INTERVU INC.
THE 1998 STOCK OPTION PLAN OF INTERVU INC.
EMPLOYEE QUALIFIED STOCK PURCHASE PLAN OF INTERVU INC.
(Full title of the plans)
<TABLE>
<S> <C>
HARRY E. GRUBER Copies to:
CHIEF EXECUTIVE OFFICER SCOTT N. WOLFE, ESQ.
INTERVU INC. LATHAM & WATKINS
6815 FLANDERS DRIVE, SUITE 200 701 "B" STREET, SUITE 2100
SAN DIEGO, CALIFORNIA 92121 SAN DIEGO, CALIFORNIA 92101
(619) 623-8400 (619) 236-1234
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
</TABLE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
Amount Proposed Maximum Proposed Maximum Amount of
Title of Securities to be Offering Price Aggregate Offering Registration
to be Registered Registered(1) Per Share Price Fee
====================================================================================================================================
<S> <C> <C> <C> <C>
Common Stock, $.001 par value 3,957,737 $0.039 - $19.25(2) $43,212,391.47(2) $12,747.66
====================================================================================================================================
</TABLE>
(1) Pursuant to Rule 416(a), this Registration Statement shall also cover any
additional shares of the Registrant's Common Stock that become issuable
under the plans by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without receipt of
consideration that increases the number of the Registrant's outstanding
shares of Common Stock.
(2) 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 stock options previously granted under the 1996 Stock
Plan of InterVU Inc. and The 1998 Stock Option Plan of InterVU Inc.; and (b)
the average of the high and low sales prices of the Registrant's Common
Stock on August 18, 1998, as reported on the Nasdaq National Market, for
shares issuable under The 1998 Stock Option Plan of InterVU Inc. and the
Employee Qualified Stock Purchase Plan of InterVU Inc. The following chart
shows the calculation of the registration fee:
<TABLE>
<CAPTION>
Type of Shares Number of Shares Offering Price per Share Aggregate Offering Price
- -------------- ---------------- ------------------------ ------------------------
<S> <C> <C> <C>
Common Stock issuable pursuant to outstanding 37,157 $ .039 $ 1,449.12
options under the 1996 Stock Plan of InterVU Inc.
Common Stock issuable pursuant to outstanding 312,064 $ .278 $ 86,753.79
options under the 1996 Stock Plan of InterVU Inc.
Common Stock issuable pursuant to outstanding 99,902 $ 1.985 $ 198,305.47
options under the 1996 Stock Plan of InterVU Inc.
Common Stock issuable pursuant to outstanding 73,334 $ 4.763 $ 349,289.84
options under the 1996 Stock Plan of InterVU Inc.
</TABLE>
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<TABLE>
<S> <C> <C> <C>
Common Stock issuable pursuant to outstanding 6,800 $ 7.750 $ 52,700.00
options under the 1996 Stock Plan of InterVU Inc.
Common Stock issuable pursuant to outstanding 15,500 $ 8.250 $ 127,875.00
options under the 1996 Stock Plan of InterVU Inc.
Common Stock issuable pursuant to outstanding 100,000 $ 8.375 $ 837,500.00
options under the 1996 Stock Plan of InterVU Inc.
Common Stock issuable pursuant to outstanding 20,789 $ 8.625 $ 179,305.13
options under the 1996 Stock Plan of InterVU Inc.
Common Stock issuable pursuant to outstanding 1,200 $ 8.688 $ 10,425.60
options under the 1996 Stock Plan of InterVU Inc.
Common Stock issuable pursuant to outstanding 17,200 $ 8.750 $ 150,500.00
options under the 1996 Stock Plan of InterVU Inc.
Common Stock issuable pursuant to outstanding 14,000 $ 9.000 $ 126,000.00
options under the 1996 Stock Plan of InterVU Inc.
Common Stock issuable pursuant to outstanding 16,000 $ 9.063 $ 145,008.00
options under the 1996 Stock Plan of InterVU Inc.
Common Stock issuable pursuant to outstanding 28,500 $ 9.125 $ 260,062.50
options under the 1996 Stock Plan of InterVU Inc.
Common Stock issuable pursuant to outstanding 163,478 $ 9.130 $1,492,554.14
options under the 1996 Stock Plan of InterVU Inc.
Common Stock issuable pursuant to outstanding 7,200 $13.625 $ 98,100.00
options under the 1996 Stock Plan of InterVU Inc.
Common Stock issuable pursuant to outstanding 165,213 $14.125 $2,333,633.63
options under the 1996 Stock Plan of InterVU Inc.
Common Stock issuable pursuant to outstanding 8,000 $15.125 $ 121,000.00
options under the 1996 Stock Plan of InterVU Inc.
Common Stock issuable pursuant to outstanding 50,000 $15.619 $ 780,950.00
options under the 1996 Stock Plan of InterVU Inc.
Common Stock issuable pursuant to outstanding 30,000 $15.750 $ 472,500.00
options under the 1996 Stock Plan of InterVU Inc.
Common Stock issuable pursuant to outstanding 50,000 $17.125 $ 856,250.00
options under the 1996 Stock Plan of InterVU Inc.
Common Stock issuable pursuant to outstanding 2,000 $17.500 $ 35,000.00
options under the 1996 Stock Plan of InterVU Inc.
Common Stock issuable pursuant to outstanding 32,900 $17.625 $ 579,862.50
options under the 1996 Stock Plan of InterVU Inc.
Common Stock issuable pursuant to outstanding 200,000 $18.563 $3,712,600.00
options under the 1996 Stock Plan of InterVU Inc.
Common Stock issuable pursuant to outstanding 6,500 $19.250 $ 125,125.00
options under the 1996 Stock Plan of InterVU Inc.
Common Stock issuable pursuant to outstanding 8,000 $11.063 $ 88,504.00
options under The 1998 Stock Option Plan of InterVU Inc.
Common Stock issuable pursuant to outstanding 5,000 $13.000 $ 65,000.00
options under The 1998 Stock Option Plan of InterVU Inc.
Common Stock issuable pursuant to outstanding 20,000 $13.500 $ 270,000.00
options under The 1998 Stock Option Plan of InterVU Inc.
Common Stock issuable pursuant to outstanding 51,000 $14.000 $ 714,000.00
options under The 1998 Stock Option Plan of InterVU Inc.
Common Stock issuable pursuant to outstanding 4,000 $15.000 $ 60,000.00
options under The 1998 Stock Option Plan of InterVU Inc.
Common Stock issuable pursuant to outstanding 84,000 $15.313 $1,286,292.00
options under The 1998 Stock Option Plan of InterVU Inc.
Common Stock issuable pursuant to outstanding 4,000 $15.438 $ 61,752.00
options under The 1998 Stock Option Plan of InterVU Inc.
Common Stock issuable pursuant to outstanding 5,000 $15.500 $ 77,500.00
options under The 1998 Stock Option Plan of InterVU Inc.
Common Stock issuable pursuant to outstanding 6,500 $17.000 $ 110,500.00
options under The 1998 Stock Option Plan of InterVU Inc.
Common Stock issuable pursuant to outstanding 5,000 $17.750 $ 88,750.00
options under The 1998 Stock Option Plan of InterVU Inc.
Common Stock available for grant under The 1998 1,807,500 $11.8125 $21,351,093.75
Stock Option Plan of InterVU Inc.
Common Stock available for grant under the Employee 500,000 $11.8125 $ 5,906,250.00
Qualified Stock Purchase Plan of InterVU Inc.
</TABLE>
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PART I
ITEM 1. PLAN INFORMATION.
Not required to be filed with this Registration Statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with this Registration Statement.
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed with the Securities and
Exchange Commission (the "Commission") by InterVU Inc., a Delaware corporation
(the "Company"), are hereby incorporated by reference in this Registration
Statement:
(a) The Annual Report on Form 10-K filed pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange
Act") on March 31, 1998 (the "Annual Report on Form 10-K");
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the effective date of the Annual Report
on Form 10-K; and
(c) The description of the Company's Common Stock, contained in
Registration Statement No. 333-51587 on Form S-1, filed with
the Commission on May 1, 1998, together with the amendments
thereto filed with the Commission on May 6, 1998, May 20,
1998, June 8, 1998 and June 15, 1998.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date this Registration Statement
is filed with the Commission 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 a part of it
from the respective dates of filing of such documents. Any statement contained
in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the Delaware General Corporation Law, the Company
has broad powers to indemnify its directors and officers against liabilities
they may incur in such capacities, including liabilities under the Securities
Act.
The Company's Certificate and Bylaws provide that the Company will
indemnify its directors and officers to the fullest extent permitted by Delaware
law. Delaware law permits, but does not require, a corporation to indemnify
officers, directors, employees or agents and expressly provides that the
indemnification provided for under Delaware law shall not be deemed exclusive of
any indemnification right under any bylaw, vote of stockholders or disinterested
directors, or otherwise. Delaware law permits indemnification against expenses
and certain other liabilities arising out of legal actions brought or threatened
against such persons for their conduct on behalf of the Company, provided that
each such person acted in good faith and in a manner that he or she reasonably
believed was in or not opposed to the Company's best interests and in the case
of a criminal proceeding, had no reasonable cause to believe his or her conduct
was unlawful. Delaware law does not allow indemnification of directors in the
case of an action by or in the right of the Company (including stockholder
derivative suits) unless the directors successfully defend the action or
indemnification is ordered by the court.
The Company is a party to indemnification agreements with each of its
directors and officers. In addition, the form of Underwriting Agreement entered
into by the Company in connection with the public offering of 1,380,000 shares
of Common Stock, plus over allotments, if any, provides for the indemnification
of the Company and its directors and officers against certain liabilities,
including liabilities under the Securities Act.
The Company maintains directors' and officers' liability insurance
covering its executive officers and directors. The policies have limits of up to
$5,000,000 in the aggregate, subject to retentions of up to $175,000 in the
aggregate.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Company 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, as amended (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. 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 and 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 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 this
Registration Statement or any material change to such information in
this Registration Statement;
provided, however, that the undertakings set forth in paragraphs (a)(1)(i) and
(a)(1)(ii) above do not apply if the Registration Statement is on Form S-3, Form
S-8 or Form F-3, and 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 the Company pursuant to Section 13 or 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 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 Company 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)
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or 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.
(c) 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, the Company
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 San Diego, State of California, on August 19, 1998.
InterVU Inc.
By: /s/ HARRY E. GRUBER
------------------------------------
Harry E. Gruber
Chief Executive Officer and
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Harry E. Gruber his true and
lawful attorney-in-fact, acting alone, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities to sign any and all amendments including post-effective amendments
and any registration statement filed pursuant to Rule 462(b) under the
Securities Act to this registration statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Commission, hereby ratifying and confirming all that said attorney-in-fact or
his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ HARRY E. GRUBER Chairman of the Board and Chief Executive August 19, 1998
- ---------------------------------- Officer (Principal Executive Officer)
Harry E. Gruber
/s/ KENNETH L. RUGGIERO Vice President and Chief Financial Officer August 19, 1998
- ---------------------------------- (Principal Financial Officer and Principal
Kenneth L. Ruggiero Accounting Officer)
/s/ EDWARD DAVID Director August 19, 1998
- ----------------------------------
Edward David
/s/ MARK DOWLEY Director August 19, 1998
- ----------------------------------
Mark Dowley
/s/ ALAN Z. SENTER Director August 19, 1998
- ----------------------------------
Alan Z. Senter.
/s/ J. WILLIAM GRIMES Vice Chairman August 19, 1998
- ----------------------------------
J. William Grimes
/s/ ISAAC WILLIS Director August 19, 1998
- ----------------------------------
Isaac Willis
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
- -------
<S> <C>
4.1 1996 Stock Plan of InterVU Inc. (1)
4.2 The 1998 Stock Option Plan of InterVU Inc. (2)
4.3 Employee Qualified Stock Purchase Plan of InterVU Inc. (2)
5.1 Opinion of Latham & Watkins.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Latham & Watkins (included in Exhibit 5.1 hereto).
24.1 Power of Attorney (included on signature page hereto).
</TABLE>
(1) Incorporated herein by reference to Amendment No. 1 to the Company's
Registration Statement No. 333-33521 on Form S-1 filed with the
Commission on October 24, 1997.
(2) Incorporated herein by reference to Amendment No. 2 to the Company's
Registration Statement No. 333-51587 on Form S-1 filed with the
Commission on May 6, 1998.
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EXHIBIT 5.1
[LATHAM & WATKINS LETTERHEAD]
August 19, 1998
InterVU Inc.
6815 Flanders Drive, Suite 200
San Diego, California 92121
Re: Form S-8 Registration Statement
Ladies and Gentlemen:
In connection with the registration by InterVU Inc., a
Delaware corporation (the "Company"), of 3,957,737 shares of common stock, par
value $.001 per share (the "Shares"), of the Company to be issued pursuant to
the 1996 Stock Plan of InterVU Inc. (the "1996 Plan"), The 1998 Stock Option
Plan of InterVU Inc. (the "1998 Plan") and the Employee Qualified Stock Purchase
Plan of InterVU Inc. (the "Stock Purchase Plan," and together with the 1996 Plan
and the 1998 Plan, the "Plans") under the Securities Act of 1933, as amended
(the "Act"), on a Registration Statement on Form S-8 filed with the Securities
and Exchange Commission on August 19, 1998 (as amended from time to time, the
"Registration Statement"), you have requested our opinion with respect to the
matters set forth below.
In our capacity as your counsel in connection with such
registration, we are familiar with the proceedings taken and proposed to be
taken by the Company in connection with the authorization, issuance and sale of
the Shares, and for the purposes of this opinion, have assumed such proceedings
will be timely completed in the manner presently proposed. In addition, we have
made such legal and factual examinations and inquiries, including an examination
of originals or copies certified or otherwise identified to our satisfaction of
such documents, corporate records and instruments, as we have deemed necessary
or appropriate for purposes of this opinion.
<PAGE> 2
LATHAM & WATKINS
InterVu Inc.
August 19, 1998
Page 2
In our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, and
the conformity to authentic original documents of all documents submitted to us
as copies.
We are opining herein as to the effect on the subject
transaction only of the General Corporation Law of the State of Delaware, and we
express no opinion with respect to the applicability thereto, or the effect
thereon, of the laws of any other jurisdiction or any other laws, or as to any
matters of municipal law or the laws of any other local agencies within the
state.
Subject to the foregoing, it is our opinion that as of the
date hereof the Shares have been duly authorized, and, upon the issuance of and
payment for the Shares in accordance with the terms set forth in the Plans, the
Shares will be validly issued, fully paid and nonassessable.
We consent to your filing this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ LATHAM & WATKINS
<PAGE> 1
EXHIBIT 23.1
[LETTERHEAD OF ERNST & YOUNG LLP]
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the 1996 Stock Plan of InterVU Inc., The 1998
Stock Option Plan of InterVU Inc. and the Employee Qualified Stock Purchase Plan
of InterVU Inc. of our report dated February 19, 1998, with respect to the
financial statements of InterVU Inc. included in its Annual Report (Form 10-K)
for the year ended December 31, 1997, filed with the Securities and Exchange
Commission on March 31, 1998 and included in Amendment No. 4 to the Registration
Statement on Form S-1 (File No. 333-51587) filed with the Securities and
Exchange Commission on June 15, 1998.
/s/ ERNST & YOUNG LLP
San Diego, California
August 19, 1998
