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As filed with the Securities and Exchange Commission on November 14, 2000
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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QUOKKA SPORTS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 94-3250045
(State of Incorporation) (I.R.S. Employer Identification No.)
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525 BRANNAN STREET, GROUND FLOOR
SAN FRANCISCO, CA 94107
(Address of principal executive offices)
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TOTAL SPORTS, INC.
2000 STOCK PLAN
(Full title of the plans)
ALVARO J. SARALEGUI
PRESIDENT AND CHIEF EXECUTIVE OFFICER
525 BRANNAN STREET, GROUND FLOOR
SAN FRANCISCO, CA 94107
(415) 908-3800
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
KENNETH L. GUERNSEY, ESQ.
COOLEY GODWARD LLP
ONE MARITIME PLAZA, 20TH FLOOR
SAN FRANCISCO, CA 94111
(415) 693-2000
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Aggregate Amount of
to be Registered Registered Price per Share (1) Offering Price (1) Registration Fee
----------------------- ----------------------- --------------------- ----------------------- ----------------------
<S> <C> <C> <C> <C>
Common Stock, par value 570,583 shares $2.67 $1,523,456.61 $402.19
$.0001 per share
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(1) Estimated solely for the purpose of calculating the amount of the
registration fee. The offering price per share and aggregate offering
price are based upon the weighted average exercise price for shares
subject to options previously granted under the Total Sports, Inc. 2000
Stock Plan (the "Plan"), pursuant to Rule 457(h) under the Securities
Act of 1933, as amended.
(2) This Registration Statement shall cover any additional shares of Common
Stock which become issuable under the Plan set forth herein by reason of
any stock dividend, stock split, recapitalization or any other similar
transaction without receipt of consideration which results in an
increase in the number of shares of the Registrant's outstanding common
stock.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Quokka Sports, Inc. (the "Company")
with the Securities and Exchange Commission are incorporated by reference into
this Registration Statement:
(a)The Company's latest annual report on Form 10-K filed pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or either (1) the Company's latest prospectus filed pursuant to
Rule 424(b) under the Securities Act of 1933, as amended (the "Act"), that
contains audited financial statements for the Company's latest fiscal year for
which such statements have been filed, or (2) the Company's effective
registration statement on Form 10 or 20-F filed under the Exchange Act
containing audited financial statements for the Company's latest fiscal year.
(b)All other reports filed pursuant to Sections 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual reports, the
prospectus or the registration statement referred to in (a) above.
(c)The description of the Company's Common Stock which is contained in a
registration statement filed under the Exchange Act, including any amendment or
report filed for the purpose of updating such description.
(d)Registration Statement on Form S-3, filed November 8, 2000.
All reports and other documents subsequently filed by the Company
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
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the Common Stock offered hereby will be passed upon for
the Company by Cooley Godward LLP, San Francisco, California. As of the date of
this Registration Statement, an investment partnership affiliated with Cooley
Godward LLP owns 127,887 shares of the Company's Common Stock.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's certificate of incorporation, as amended, contains
provisions permitted under Delaware law relating to the liability of directors.
These provisions eliminate a director's personal liability for monetary damages
resulting from a breach of fiduciary duty, except in circumstances involving
wrongful acts, such as:
- any breach of the director's duty of loyalty;
- acts or omissions which involve a lack of good faith,
intentional misconduct or a knowing violation of the law;
- payment of dividends or approval of stock repurchases or
redemptions that are unlawful under Delaware law; or
- any transaction from which the director derives an improper
personal benefit.
These provisions do not limit or eliminate the Company's rights or any
stockholder's rights to seek non-monetary relief, such as an injunction or
rescission, in the event of a breach of director's fiduciary duty. These
provisions will not alter a director's liability under federal securities laws.
The Company's bylaws, as amended, require the Company to indemnify its
directors and executive officers to the fullest extent not prohibited by the
Delaware law. The Company may limit the extent of such indemnification by
individual contracts with its directors and executive officers. Further, the
Company may decline to indemnify any director or executive officer in connection
with any proceeding initiated by such person or any proceeding by such
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person against the Company or its directors, officers, employees or other
agents, unless such indemnification is expressly required to be made by law or
the proceeding was authorized by our board of directors.
The Company has entered into indemnity agreements with each of its
current directors and certain of its executive officers to give such directors
and officers additional contractual assurances regarding the scope of the
indemnification set forth in our certificate of incorporation and bylaws and to
provide additional procedural protections. At present, there is no pending
litigation or proceeding involving a director, officer or employee of the
Company for which indemnification is sought, nor is the Company aware of any
threatened litigation that may result in claims for indemnification.
The Company has the power to indemnify its other officers, employees and
other agents, as permitted by Delaware law, but it is not required to do so. The
Company maintains directors' and officers' liability insurance.
EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
CONSULTANTS AND ADVISORS
Not applicable.
2.
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EXHIBITS
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EXHIBIT
NUMBER
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<S> <C>
5.1 Opinion of Cooley Godward LLP
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement
24.1 Power of Attorney is contained on the signature pages
99.1 Total Sports, Inc. 2000 Stock Plan and forms of grant thereunder
99.2 Registration Statement on Form S-3 filed by Quokka Sports, Inc. on
November 8, 2000*
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* Previously filed with Securities and Exchange Commission on
November 8, 2000.
UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) 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 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. 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 end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) (Section 230.424(b) of this
chapter) if, in the aggregate, the changes in volume and price represent no more
than a 20% 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 the registration statement or
any material change to such information in the registration statement;
Provided, however, that paragraphs (a)(i) and (a)(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 issuer pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by
reference herein.
(b) 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.
(c) 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.
2. 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
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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. 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.
4.
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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 San Francisco, State of California, on November
14, 2000.
QUOKKA SPORTS, INC.
By: /s/ Les Schmidt
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Les Schmidt
Executive Vice President, Chief Financial
Officer and Secretary
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Alvaro Saralegui and Les Schmidt, and each or any one of them, his true and
lawful attorney-in-fact and agent, 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)
to this Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their
or his substitutes or substitute, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed 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>
President, Chief Executive November 14, 2000
/s/ Alvaro J. Saralegui Officer and Director
---------------------------------- (Principal Executive Officer)
(ALVARO J. SARALEGUI)
/s/ Les Schmidt Executive Vice President, November 14, 2000
---------------------------------- Chief Financial Officer and
(LES SCHMIDT) Secretary (Principal
Financial and Accounting
Officer)
/s/ Alan S. Ramadan Director (Chairman of the November 14, 2000
---------------------------------- Board of Directors)
(ALAN S. RAMADAN)
/s/ Richard H. Williams Director (Vice Chairman of November 14, 2000
---------------------------------- the Board of Directors)
(RICHARD H. WILLIAMS)
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5.
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Director November 14, 2000
/s/ John Bertrand
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(JOHN BERTRAND A.M.)
/s/ Walter W. Bregman Director November 14, 2000
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(WALTER W. BREGMAN)
/s/ James G. Shennan Director November 14, 2000
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(JAMES G. SHENNAN, JR.)
/s/ Barry M. Weinman Director November 14, 2000
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(BARRY M. WEINMAN)
Director November 14, 2000
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(FRANK A. DANIELS)
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6.
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EXHIBIT INDEX
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EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NUMBERS
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5.1 Opinion of Cooley Godward LLP 8
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants 9
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement 8
24.1 Power of Attorney is contained on the signature pages 5
99.1 Total Sports, Inc. 2000 Stock Plan and forms of grant thereunder 10
99.2 Registration Statement on Form S-3 filed by Quokka Sports, Inc. on
November 8, 2000*
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* Previously filed with the Securities and Exchange Commision on
November 8, 2000.
7.
