AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL , 2000
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REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BARPOINT.COM, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 11-2780723
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
ONE EAST BROWARD BLVD., SUITE 410
FT. LAUDERDALE, FLORIDA 33301
(954) 745-7500
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
BARPOINT.COM, INC.
CONSULTANT OPTIONS
EMPLOYMENT AGREEMENT OPTIONS
1996 STOCK OPTION PLAN
(Full title of the plan)
1999 STOCK OPTION PLAN
(Full title of the plan)
LEIGH M. ROTHSCHILD, PRESIDENT
ONE EAST BROWARD BLVD., SUITE 410
FT. LAUDERDALE, FLORIDA 33301
(954) 745-7500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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COPIES TO:
David W. Sass, Esq.
McLaughlin & Stern, LLP
260 Madison Avenue, 18th Floor
New York, New York 10016
Telephone: (212) 448-1100 Facsimile: (212) 448-0066
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CALCULATION OF REGISTRATION FEE
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Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered(1) offering price per unit(2) aggregate offering price(2) registration fee
Common Stock 2,667,363 shares $8.68 $23,152,710 $6,112.31
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(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan(s) described herein. (2)
Estimated, in accordance with 17 CFR 230.457 (c), solely for the purpose of
calculating the registration fee. The Proposed Maximum Offering Price per Share
is based on the average of the high and low prices reported by the NASDAQ Small
Caps Market System as of April 24, 2000 which is within five (5) business days
prior to the date of this registration statement.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan information.*
Item 2. Registrant information and employee plan annual information.*
* The information required by Items 1 and 2 of Form S-8 is not filed as a part
of this registration statement in accordance with the Note to Part I of Form S-8
and Rule 428 (b)(1) under the Securities Act of 1933, as amended ("Securities
Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference in this Registration
Statement the following documents:
(a) The Registrant's latest annual report on Form 10-K, filed pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), containing audited financial statements for the
Registrant's latest fiscal year.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual report
referred to in (a) above.
All documents subsequently filed by the Registrant and the Plan
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment to this Registration Statement which
indicates that all securities offered hereby have been sold or which deregisters
all securities 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.
(c) The class of securities to be offered pursuant to the Company's
1996 Stock Option Plan, Consultant's Options, 1999 Stock Option Plan and Officer
and Director Options is the Registrant's Common Stock, $.001 par value,
registered under Form 8-A of Section 12 of the Exchange Act.
Item 4. Description of Securities. Not applicable.
Item 5. Interests of Named Experts and Counsel.
The Registrant has retained McLaughlin & Stern, LLP as its legal counsel and
Marks Shron & Company, LLP. as its Certified Public Accountants. Mr. David W.
Sass, a partner of McLaughlin & Stern, LLP, is a director of the Company and
holds 69,817 shares of the Company's common stock.
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Item 6. Indemnification of Directors and Officers.
The Registrant's By-Laws provide in article Tenth that no Director or
Officer of the Registrant shall be liable to the Registrant or any of its
shareholders for reasonable expenses incurred by such person incurred by him or
her in connection with the defense of any action for breach of any duty owed to
the Registrant or its shareholders. Such amount of indemnity to which any
officer or director may be entitled shall be fixed by the Company's Board of
Directors, except that in any case where there is no disinterested majority of
the Board available, the amount shall be fixed by arbitration pursuant to then
existing rules of the American Arbitration Association.
Reference is made to Section 145 of the Delaware General Corporation
Law, as amended (the "DGCL"), which provides 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 legal action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of such corporation) by reason of the fact that such person is or was
a director, officer, employee or agent of such corporation, or is or was serving
at the request of such corporation in such capacity of another corporation or
business organization. The indemnity may include expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such director, officer, employee or agent in connection with such
action, suit or proceeding is such person acted in good faith and in a manner
such person reasonably believed to be in or not opposed to the best interest of
the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe that such person's conduct was unlawful. A Delaware
corporation may indemnify officers and directors in an action by or in the right
of a corporation under the same conditions, except that no indemnification is
permitted without judicial approval if the officer or director is adjudged to be
liable to the corporation. Where an officer or director is successful on the
merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses that such officer or
director actually and reasonably incurred.
Reference is also made to Section 102 (b) (7) of the DGCL, which
enables a corporation in its certificate of incorporation to eliminate or limit
the personal liability of a director for monetary damages for violations of a
director's fiduciary duty, except for liability (I) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL (providing for
liability of directors for unlawful payment of dividends or unlawful stock
purchases or redemptions) or (iv) for any transaction from which the director
derived an improper personal benefit.
Item 7. Exemption from Registration Claimed. Not applicable.
Item 8. Exhibits.
4.1 Certificate of Incorporation of Registrant
4.2 By-laws of Registrant
4.3 Form of Common Stock Certificate
5.1 Opinion of McLaughlin & Stern, LLP.
23.1 Consent of Marks Shron & Company, LLP, independent certified
public accountants
23.2 Consent of McLaughlin & Stern, LLP. (included in Exhibit 5.1)
(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:
(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) that, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement;
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(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 the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(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 by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining 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 that 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
Securities and Exchange Act of 1934 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 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 Common Stock
being registered, the Registrant will, unless in the opinion of 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.
(4) 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 and Exchange Act of 1934 and 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 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.
(5) The undersigned registrant hereby undertakes to deliver or cause to
be delivered with the prospectus, to each person to whom the prospectus is sent
or given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities and Exchange Act
of 1934; and where interim financial information required to be presented by
Article 3 of Regulation S-X are not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent of given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
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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 New York, State of New York, on April 26, 2000.
BARPOINT.COM, INC.
By: /s/ John C. Macatee
Name: John C. Macatee
Title: President and CEO
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SIGNATURE TITLE DATE
/s/ Leigh M. Rothschild Chairman of the Board of Directors April 26, 2000
/s/ Jeffrey W. Sass Executive Vice President,
Chief Operating Officer, Secretary April 26, 2000
and Director
/s/ Seymour A. Seigel Director April 26, 2000
/s/David W. Sass Director April 26, 2000
/s/ John C. Macatee President, CEO and Director April 26, 2000
/s/ Jay Linn Director April 26, 2000
/s/ Kenneth Jaeggi Director April 26, 2000
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Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, State of New
York, on April 26, 1999.
1996 Stock Option Plan
1999 Stock Option Plan
Consultant Options
Employment Agreement Options
By: /s/ John C. Macatee
Name: John C. Macatee
Title : President and CEO
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
4.1 Certificate of Incorporation of Registrant*
4.2 By-laws of Registrant*
4.3 Form of Common Stock Certificate*
5.1 Opinion of McLaughlin & Stern, LLP. (filed herewith)
23.1 Consent of Marks Shron & Company, LLP, independent certified
public accountants (filed herewith)
23.2 Consent of McLaughlin & Stern, LLP. (included in Exhibit 5.1)
* Incorporated by reference to the Registrant's Registration Statement on Form
SB-2, registration number 333-03501.
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EXHIBIT 5.1
McLaughlin & Stern, LLP
260 Madison Avenue, 18th Floor
New York, New York 10016
April 26, 2000
We are rendering this opinion in connection with the Registration
Statement on Form S-8 (the "Registration Statement") filed by BarPoint.com, Inc.
(the "Company') with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended, on or about the date hereof. The
Registration relates to the registration of 2,667,363 shares ("Shares") of
Common Stock, par value $.001 per share issuable upon exercise of stock options
("Options") to be granted pursuant to the Company's 1996 Stock Option Plan, 1999
Stock Option Plan, Employment Contract Options and Consultant Options.
We hereby advise you that we have examined originals or copies
certified to our satisfaction of the Certificate of Incorporation and amendments
thereto and the By-Laws and amendments thereto of the Company, minutes of the
meetings of the Board of Directors and Shareholders and such other documents and
instruments, and we have made such examination of law as we have deemed
appropriate as the basis for the opinions hereinafter expressed.
Based on the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is validly existing and in
good standing under the laws of the State of Delaware.
2. Based upon the foregoing, we are of the opinion that when issued and
paid for in accordance with the terms of the Options, the Shares pursuant
to the 1996 Stock Option Plan will be duly authorize, validly issued, fully
paid and nonassessable.
3. Based upon the foregoing, we are of the opinion that when issued and
paid for in accordance with the terms of the Options, the Shares pursuant
to the 1999 Stock Option Plan will be duly authorize, validly issued, fully
paid and nonassessable.
4. Based upon the foregoing, we are of the opinion that when issued and
paid for in accordance with the terms of the Options, the Shares pursuant
to the Consultant Options will be duly authorize, validly issued, fully
paid and nonassessable.
5. Based upon the foregoing, we are of the opinion that when issued and
paid for in accordance with the terms of the Options, the Shares pursuant
to the Employment Contract Options will be duly authorize, validly issued,
fully paid and nonassessable
We hereby consent to the filing of this opinion as a part of the
Registration Statement and to the use of our name therein and in the related
prospectus. We advise you that a member of this firm is a director of the
Company.
Very truly yours,
/s/McLaughlin & Stern, LLP
CONSENT OF INDEPENDENT AUDITORS
BarPoint.com, Inc.
We hereby consent to the incorporation by reference in this Registration
Statement of BarPoint.com, Inc. on Form S-8 of our report dated December 15,
1999, appearing in the Company's Annual Report on form 10-KSB for the year ended
September 30, 1999. We also consent to the reference to our Firm under the
caption "Experts" in such Registration Statement.
/s/ Marks Paneth & Shron LLP
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MARKS PANETH & SHRON LLP
(Formerly Marks Shron & Company LLP)
Certified Public Accountants
Great Neck, New York
April 25, 2000
