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As filed with the Securities and Exchange Commission on April 26, 2000
Registration No. 333-____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
i3 MOBILE, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
51-0335359
(I.R.S. Employer Identification No.)
181 Harbor Drive, Third Floor, Stamford, CT 06902
(Address of Principal Executive Offices, including zip code)
1995 Stock Incentive Plan and
2000 Stock Incentive Plan (the "Plans")
(Full Title of the Plan)
Stephen G. Maloney Copy to:
President and Chief Executive Officer Michael Hirschberg, Esq.
i3 Mobile, Inc. Piper Marbury Rudnick & Wolfe LLP
181 Harbor Drive, Third Floor 1251 Avenue of the Americas
Stamford, CT 06902 New York, NY 10020
(203) 428-3000 (212) 835-6000
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan(s) described herein.
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM AGGREGATE
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER OFFERING PRICE AMOUNT OF
REGISTERED(1) SHARE(2) REGISTRATION FEE
<S> <C> <C> <C> <C>
Common Stock, 2,264,000 $9.08 $20,565,946 $5,429
$0.01 par value
</TABLE>
(1) Includes 2,264,000 shares to be registered under the Plans plus such
additional indeterminate number of shares of the Common Stock as may be
issuable pursuant to certain anti-dilution adjustment provisions
thereof.
(2) Estimated pursuant to Rules 457(c) and (h) under the Securities Act of
1933, as amended, based on (a) the average of the high and low prices
of the Common Stock as reported on the Nasdaq National Market on April
14, 2000 for 1,006,100 shares not yet subject to options and (b) the
actual exercise prices for 1,257,900 shares subject to options (which
range from $0.30 to $15.00).
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8 and
the statement of availability of Registrant information and any other
information required by Item 2 of Form S-8 will be sent or given to participants
as specified by Rule 428 under the Securities Act of 1033, as amended (the
"Securities Act"). In accordance with Rule 428 and the requirements of Part I of
Form S-8, such documents are not being filed with the Commission either as part
of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 under the Securities Act. The Registrant shall maintain a
filer of such documents in accordance with the provisions of Rule 428. Upon
request, the Registrant shall furnish the Commission or its staff with a copy or
copies of all of the documents included in such file.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Commission are
incorporated by reference in this Registration Statement:
(a) The Prospectus filed with the Commission pursuant to Rule
424(b) on April 6, 2000;
(b) The Registration Statement on Form S-1 (Registration No.
333-94191) filed by the Registrant on January 7, 2000 and all
amendments thereafter; and
(c) The description of the Registrant's Common Stock set forth as
Item 1 under the caption "Description of Securities" in the
Registration Statement on Form 8-A filed by the Registrant
pursuant to Section 12(g) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") on March 31, 2000,
including any amendment or report filed for the purpose of
updating such description.
In addition, all documents subsequently filed by the Registrant with
the Commission 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 remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part of this Registration Statement from the date of
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of Common Stock that may be issued pursuant
to options granted under the Plans is being passed upon for the Registrant by
Piper Marbury Rudnick & Wolfe LLP, New York, New York.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Reference is made to Section 145 of the Delaware General Corporation
Law, which provides for indemnification of directors, officers and other
employees in certain circumstances, and to Section 102(b)(7) of the Delaware
General Corporation Law, which provides for the elimination or limitation of the
personal liability for monetary damages of directors under certain
circumstances. Article VIII of the Registrant's Bylaws, as amended, provides for
indemnification of the directors and officers of the Registrant to the fullest
extent permitted by the Delaware General Corporation Law and for indemnification
of the employees and agents of the Registrant in accordance with Delaware law as
the board of directors shall determine in its sole discretion. Article Eighth of
the Registrant's Restated Certificate of Incorporation, as amended, eliminates
the personal liability for monetary damages of directors of the Corporation
under certain circumstances.
The Registrant maintains a directors' and officers' liability insurance
policy covering certain liabilities that may be incurred by directors and
officers in connection with the performance of their duties. The entire premium
for such insurance is paid by the Registrant Accordingly, indemnification may
occur for liabilities arising under the Securities Act. Insofar as
indemnification for liabilities arising under the Securities Act may be
permitted for 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 Commission, such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
4.1 Restated Certificate of Incorporation of the Registrant, as amended
(incorporated by reference to Exhibits 3.1 through 3.6 to the
Registrant's Registration Statement on Form S-1, as amended
(Registration No. 333-94191))
4.2 Amended Bylaws of the Registrant (incorporated by reference to Exhibit
3.7 to the Registrant's Registration Statement on Form S-1, as amended
(Registration No. 333-94191))
4.3 1995 Stock Incentive Plan, as amended, and 2000 Stock Incentive Plan
(incorporated by reference to Exhibits 4.3 and 10.19 to the
Registrant's Registration Statement on Form S-1, as amended
(Registration No. 333-94191))
5.1 Opinion of Piper Marbury Rudnick & Wolfe LLP as to the legality of the
securities being registered
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Piper Marbury Rudnick & Wolfe LLP (included in Exhibit 5.1
hereto)
24.1 Power of Attorney (included on signature pages of this Registration
Statement)
ITEM 9. UNDERTAKINGS.
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;
(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.
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Provided, however, that paragraphs (l)(i) and (l)(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 by the
Registrant 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 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.
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 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.
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 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 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, 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 Stamford, State of Connecticut, on this 26th day of
April, 2000.
i3 MOBILE, INC.
By: /s/ Stephen G. Maloney
----------------------------
Stephen G. Maloney
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Stephen G. Maloney 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 exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorney-in-fact and agent or his substitute or substitutes, or any of
them, 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 below by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
President, Chief Executive Officer
/s/ Stephen G. Maloney and Director April 26, 2000
- ----------------------------------------
Stephen G. Maloney
Vice President and Chief Financial
/s/ Michael P. Neuscheler Officer April 26, 2000
- ----------------------------------------
Michael P. Neuscheler
Chairman of the Board and Director
/s/ Robert M. Unnold April 26, 2000
- ----------------------------------------
Robert M. Unnold
/s/ Donald Christino Director April 26, 2000
- ----------------------------------------
Donald Christino
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ W. Peter Daniels Director April 26, 2000
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W. Peter Daniels
/s/ Kerry J. Dale Director April 26, 2000
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Kerry J. Dale
/s/ James A. Johnson Director April 26, 2000
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James A. Johnson
/s/ J. William Grimes Director April 26, 2000
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J. William Grimes
</TABLE>
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EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
4.1 Restated Certificate of Incorporation of the Registrant, as
amended*
4.2 Amended Bylaws of the Registrant*
4.3 1995 Stock Incentive Plan, as amended, and 2000 Stock
Incentive Plan*
5.1 Opinion of Piper Marbury Rudnick & Wolfe LLP as to the
legality of the securities being registered**
23.1 Consent of PricewaterhouseCoopers LLP**
23.2 Consent of Piper Marbury Rudnick & Wolfe LLP (included in
Exhibit 5.1 hereto)**
24.1 Power of Attorney (included on signature pages of this
Registration Statement).
* Filed as an Exhibit to the Registration Statement on Form S-1, as
amended (Registration No. 333-94191).
** Filed herewith.
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EXHIBIT 5.1
[PIPER MARBURY RUDNICK & WOLFE LLP LETTERHEAD]
1251 Avenue of the Americas
New York, New York 10020
www.piperrudnick.com
PHONE (212) 835-6000
FAX (212)835-6001
April 26, 2000
i3 Mobile, Inc.
181 Harbor Drive
Stamford, CT 06902
Ladies and Gentlemen:
We have acted as counsel to i3 Mobile, Inc., a Delaware corporation
(the "Company"), in connection with the preparation and filing with the
Securities and Exchange Commission of a registration statement on Form S-8 (the
"Registration Statement") registering 2,264,000 shares (the "Shares") of Common
Stock, par value $.01 per Share, issuable under the Company's 1995 Stock
Incentive Plan, as amended, and 2000 Stock Incentive Plan (the "Plans").
We have examined copies of the Company's Restated Certificate of
Incorporation, as amended, the Company's Amended Bylaws, the Plans, all
resolutions adopted by the Company's Board of Directors and shareholders
relating to the above and other records and documents that we have deemed
necessary for the purpose of this opinion. We have also examined such other
documents, papers, statutes and authorities as we have deemed necessary to form
a basis for this opinion. In our examination, we have assumed the genuineness of
all signatures and the conformity to original documents of all copies submitted
to us. As to various questions of fact material to this opinion, we have relied
on statements and certificates of officers and representatives of the Company
and others.
Based upon the foregoing, we are of the opinion that the Shares have
been duly authorized and will be (when issued, sold and delivered as authorized)
validly issued, fully paid and non-assessable.
The opinion set forth herein is limited to matters governed by the laws
of the State of Delaware and the Federal Laws of the United States of America,
and we express no opinion as to any other laws.
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We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
PIPER MARBURY RUDNICK & WOLFE LLP
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of our report dated February 14, 2000 relating to the
financial statements, which appears in the i3 Mobile, Inc. Registration
Statement on Form S-1. We also consent to the incorporation by reference of our
report dated February 14, 2000 relating to the financial statement schedules,
which appears in such Registration Statement on Form S-1.
PricewaterhouseCoopers LLP
Stamford, Connecticut
April 24, 2000
