As filed with the Securities and Exchange Commission on December 18, 2000
Registration Statement 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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BARPOINT.COM, INC.
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(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 11-2780723
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(State or Other Jurisdiction of (IRS. Employer
Incorporation or Organization) Identification No.)
One East Broward Boulevard, Suite 410
Fort Lauderdale, Florida 33301
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(Address of Principal Executive Offices)
BarPoint.com, Inc. Equity Incentive Plan, as amended
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(Full Title of the Plan)
John C. Macatee
President and Chief Executive Officer
Barpoint.com, Inc.
One East Broward Boulevard, Suite 410
Fort Lauderdale, Florida 33301
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(Name and Address of Agent For Service)
(954) 745-7500
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(Telephone Number, Including Area Code, of Agent For Service)
Copy to:
Michele Keusch, Esq.
Greenberg Traurig, P.A.
1221 Brickell Avenue
Miami, Florida 33131
(305) 579-0500
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed
Title of Securities Amount To Be Offering Price Maximum Aggregate Amount Of
To Be Registered Registered(1) Per Share(2) Offering Price(2) Registration Fee
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<S> <C> <C> <C> <C>
Common Stock 3,000,000 $1.156 - $12.750 $9,059,330.802 $2,391.67
$0.001 par value.................... shares
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(1) 1,500,000 shares of Common Stock were registered in Form S-8 (File No.
333-35612) on April 26, 2000 and 3,000,000 shares are being registered
herewith.
(2) Estimated solely for the purpose of calculating the registration fee
which was computed in accordance with Rule 457(h) on the basis of the
(i) average of the high and low price of a share of Common Stock as
reported by the Nasdaq SmallCap Market on December 13, 2000, (which was
$1.156 with respect to 1,432,467 shares of Common Stock subject to
future grants of options under the BarPoint.com, Inc. Equity Incentive
Plan (the "Plan") and (ii) the following options to purchase Common
Stock being registered, which have already been granted under the Plan:
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Aggregate Number Actual Exercise Price
of Options Granted ($)
162,833 12.750
2,400 10.312
25,500 9.750
6,500 8.312
4,300 6.250
10,000 4.750
8,500 4.875
104,000 6.125
26,000 5.125
59,300 5.562
15,000 5.000
29,300 3.500
12,000 3.250
45,000 4.687
778,900 3.562
19,200 4.125
4,300 2.906
17,900 2.281
17,800 1.875
14,000 2.031
146,800 2.000
41,500 1.750
16,800 1.281
<PAGE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Explanatory Note.
A Registration Statement on Form S-8 (File No. 333-35612) was filed
with the Securities and Exchange Commission on April 26, 2000 covering the
registration of 1,500,000 shares of Common Stock initially authorized for
issuance under BarPoint.com, Inc.'s Equity Incentive Plan (the "Plan"), which
was mistakenly referred to as the 1999 Stock Option Plan. Pursuant to General
Instruction E of Form S-8, this Registration Statement is being filed solely to
register an additional 3,000,000 shares of Common Stock of BarPoint.com reserved
for issuance under the Plan. The Board of Directors of BarPoint.com approved the
increase in the number of shares reserved for issuance under the Plan by
1,500,000 to a total of 3,000,000 shares of Common Stock on April 4, 2000 and
again by 1,500,000 shares of Common Stock, to a total of 4,500,000 shares on
November 20, 2000. The contents of the prior Registration Statement are
incorporated herein by reference.
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
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* The document(s) containing the information specified in this Part I
will be sent or given to employees as specified by Rule 428(b)(1). Such
documents will not be filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as the
prospectuses or prospectus supplements pursuant to Rule 424. These documents and
the documents incorporated by reference in this Registration Statement pursuant
to Item 3 of Part II of this Registration Statement, taken together, shall
constitute a prospectus which meets the requirements of Section 10(a) of the
Securities Act of 1933, as amended.
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<PAGE>
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference into this Registration
Statement the following documents or portions thereof as indicated:
(a) the Registrant's Annual Report on Form 10-KSB/A for the fiscal
year ended September 30, 1999;
(b) the Registrant's Quarterly Report on Form 10-QSB/A, for the
quarterly period ended December 31, 1999;
(c) the Registrant's Quarterly Report on Form 10-QSB/A, for the
quarterly period ended March 30, 2000;
(d) the Registrant's Registration Statement on Form S-8,
registration no. 333-35612 filed on April 26, 2000;
(e) the Registrant's Quarterly Report on Form 10-QSB, for the
quarterly period ended June 31, 2000;
(f) the Registrant's Registration Statement on Form S-3/A,
registration no. 333-37478 filed on November 8, 2000 and the
Registrant's prospectus filed pursuant to Rule 424(b) under
the Securities Act on November 22, 2000;
(g) all other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") since November 22, 2000; and
(h) the description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form SB-2 filed
with the Commission on May 10, 1996 pursuant to Section 12 of
the Exchange Act, and any amendment or report filed for the
purpose of updating any such description.
In addition, 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 hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated herein by reference and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated herein by reference shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein, or in a subsequently filed document incorporated
herein by reference, 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.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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
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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.
None claimed.
Item 8. Exhibits
See "Exhibit Index" on page II-1 below.
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:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933 (the "Act");
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the 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 the
registration statement;
(iii) 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;
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 with or furnished to the Commission by the Registrant pursuant to Section
13 or 15(d) of the Exchange Act that are incorporated by reference in this
Registration Statement.
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(2) That, for the purpose of determining any liability under
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 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 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.
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SIGNATURES
Pursuant to the requirements of the 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 Fort
Lauderdale, State of Florida on this 18th of December, 2000.
BARPOINT.COM, INC.
By: /s/ John C. Macatee
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Name: John C. Macatee
Title: President and Chief Executive Officer
Each person whose signature appears below hereby appoints John C.
Macatee his true and lawful attorney-in-fact with the authority to execute in
the name of each such person, and to file with the Securities and Exchange
Commission, together with any exhibits thereto and other documents therewith,
any and all amendments (including without limitation post-effective amendments)
to this registration statement necessary or advisable to enable the registrant
to comply with the Securities Act of 1933, as amended, and any rules,
regulations and requirements of the Securities and Exchange Commission in
respect thereof, which amendments may make such other changes in the
registration statement as the aforesaid attorney-in-fact executing the same
deems appropriate.
Pursuant to the requirements of the Act, this Registration Statement
has been signed below by the following persons in the capacities and on the
dates indicated.
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Signature Title Date
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<S> <C> <C>
/s/ Leigh M. Rothschild
--------------------------------- Chairman of the Board of Directors December 18, 2000
Leigh M. Rothschild
/s/ John C. Macatee President, Chief Executive Officer and Director December 18, 2000
--------------------------------- (Principal Executive Officer)
John C. Macatee
/s/ Jeffrey W. Sass
--------------------------------- Chief Operating Officer, Executive Vice December 18, 2000
Jeffrey W. Sass President, Secretary and Director
/s/ Michael A. Karmelin
--------------------------------- Chief Financial Officer December 18, 2000
Michael A. Karmelin (Principal Financial Officer)
/s/ Jay Howard Linn Director December 18, 2000
---------------------------------
Jay Howard Linn
/s/ Kenneth Jaeggi Director December 18, 2000
---------------------------------
Kenneth Jaeggi
/s/ David W. Sass Assistant Secretary and Director December 18, 2000
---------------------------------
David W. Sass
/s/ Seymour G. Siegel Director December 18, 2000
---------------------------------
Seymour G. Siegel
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Signature Title Date
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<S> <C> <C>
/s/ David Wachter Director December 18, 2000
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David Wachter
/s/ Gerald C. McDonough Director December 18, 2000
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Gerald C. McDonough
/s/ Marguerite W. Sallee Director December 18, 2000
---------------------------------
Marguerite W. Sallee
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EXHIBIT INDEX
Exhibit
Number Description
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4.1 Registrant's Certificate of Incorporation, as amended(1)
4.2 Registrant's Bylaws, as amended(2)
4.3 BarPoint.com, Inc. Equity Incentive Plan, as amended
5.1 Opinion of Greenberg Traurig, P.A.
23.1 Consent of Marks Paneth & Shron LLP
23.2 Consent of Greenberg Traurig, P.A. (contained in its
opinion filed as Exhibit 5.1 hereto)
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(1) Incorporated by reference to Exhibit 3.1 to Registrant's Registration
Statement on Form SB-2 filed on May 10, 1996 (File No. 333-3501), Exhibit 6
to Registrant's Report on Form 8-K filed on June 3, 1999 and Exhibit 1 to
Registrant's Report on Form 8-K filed on June 15, 1999.
(2) Incorporated by reference to Exhibit 3.2 to Registrant's Registration
Statement on Form SB-2 (File No. 333-3501).
