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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Netivation.com, Inc.
(Exact name of registrant as specified in its charter)
Delaware 82-0514605
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) Number)
806 West Clearwater Loop, Suite N
Post Falls, Idaho 83854
(208) 777-4203 -----
(Address of Principal Executive Offices) (Zip Code)
Plan Names:
1999 Equity Incentive Plan
1999 Employee Stock Purchase Plan
(Full Title of Plans)
Anthony J. Paquin
President and CEO
Netivation.com, Inc.
806 West Clearwater Loop, Suite N
Post Falls, Idaho 83854
(208) 777-4203
(Name, Address and Telephone Number, including area code of Agent for Service)
Copies to:
Mark A. Ellison, Esq.
Moffatt, Thomas, Barrett, Rock & Fields, Chtd.
101 South Capitol Blvd., 10th Floor
Boise, Idaho 83701
(208) 345-2000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Each Class of Proposed Maximum Proposed Max. Amount of
Securities to be Amounts to be Offering Price Per Aggregate Registration
Registered Registered(1) Share(2) Offering Price Fee
<S> <C> <C> <C> <C>
Stock Options and Common 1,250,000 Shares (1) $1.25 - $10.00(2) $15,625.00 - $3,475
Stock (par value $.0001) $3,100,000.00(2)
</TABLE>
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<TABLE>
<CAPTION>
Type of Shares Number of Shares Offering Price Aggregate Offering
Per Share Price
<S> <C> <C> <C>
Shares issuable pursuant to 12,500 $ 1.25 $ 15,625.00
outstanding options under the 130,875 $ 1.25 $ 163,593.75
1999 Equity Incentive Plan 164,250 $ 2.50 $ 410,625.00
310,000 $10.00 $3,100,000.00
40,000 $ 6.00 $ 240,000.00
Shares reserved for future grant 92,375 $ 6.59(2) $ 608,751.25
pursuant to the 1999 Equity
Incentive Plan
Shares issuable pursuant to the 500,000 $ 6.59(2) $3,295,000.00
1999 Employee Stock Purchase Plan
Proposed Maximum Aggregate $7,833,595.00
Offering Price
Registration Fee $ 3,475
</TABLE>
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, this Registration
Statement also covers an indeterminate amount of interest to be offered or
sold pursuant to the employee benefit plan(s) described herein.
(2) Unless offering price is stated in the table above, the price is estimated
solely for purposes of calculating the registration fee pursuant to Rule
457(c) & (h) of the Securities Act of 1933, as amended. The offering price
per share and the aggregate offering price for the unissued stock options
are based upon the average of the high and low prices of the Registrant's
Common Stock as reported on the Nasdaq National Market on November 5,
1999.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by Netivation.com, Inc. (the "Company") with the
Securities and Exchange Commission are incorporated by reference into this
Registration Statement:
(A) The Company's latest prospectus contained on Form SB-2 (File No. 333-
74569) filed pursuant to Rule 424(b) under the Act that contains audited
financial statements for the Company's latest fiscal year for which such
statements have been filed.
(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 Company's document
referred to in (a) above.
All reports and documents subsequently filed by it pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, 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 the registration statement and to be
part thereof 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 offered hereby will be passed
upon for the Company by Moffatt, Thomas, Barrett, Rock & Fields, Boise, Idaho.
As of the date of this Prospectus, Moffatt Thomas has option rights to 62,500
shares of Common Stock through the assignment of an irrevocable non-qualified
option agreement.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law authorizes a court to
award or a corporation's Board of Directors to grant indemnification to
directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities, including
reimbursement for expenses incurred arising under the Securities Act. The
Registrant's Bylaws provide for mandatory indemnification of its directors and
executive officers and permissible indemnification of officers, employees and
other agents to the maximum extent permitted by the Delaware General Corporation
Law or other applicable law.
The Registrant has entered into indemnification agreements with each of its
executive officers and directors. The indemnification agreements protect the
Registrant's officers and directors against certain liabilities, including
liabilities under the Securities Act.
Item 7. Exemption from Registration Claim
Not applicable.
Item 8. Exhibits
Number Exhibit
- ------ -------
5.1 Opinion of Moffatt, Thomas, Barrett, Rock & Fields, Chtd.
23.1 Consent of Arthur Andersen, LLP
23.2 Consent of Moffatt, Thomas, Barrett, Rock & Fields, Chtd. Reference
is made to Exhibit 5.1
99.1* The Company's 1999 Equity Incentive Plan
99.2 Form of Incentive or Non-statutory Stock Option Grant Notice under the
1999 Equity Incentive Plan
99.3* The Company's 1999 Employee Stock Purchase Plan
99.4 1999 Employee Stock Purchase Plan Enrollment/Change Form
* Documents incorporated by reference from the Company's Registration Statement
on Form SB-2, as amended (File No. 333-74569) filed with the Securities and
Exchange Commission on March 18, 1999.
Item 9. 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
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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) (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
registration statement is on Form S-3 or Form S-8 and 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 in the registration
statement.
(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 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. In so far 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.
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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 Town of Post Falls, State of Idaho, on November 8, 1999.
Netivation.com, Inc.
By:
/s/ Anthony J. Paquin
________________________________________
Anthony J. Paquin
Chairman of the Board of Directors,
President and Chief Executive Officer
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.
Signature Title Date
- ----------------------- ------------------------ -----------------
/s/ Anthony J. Paquin
_______________________ Chairman of Board of November 8, 1999
Anthony J. Paquin Directors, President and
Chief Executive Officer
/s/ Gary S. Paquin
_______________________ Chief Marketing Officer, November 8, 1999
Gary S. Paquin Secretary and Director
/s/ James B. Arnold
_______________________ Chief Financial Officer November 8, 1999
James B. Arnold
/s/ Douglas K. Carnahan
_______________________ Director November 8, 1999
Douglas K. Carnahan
_______________________ Director November__, 1999
T.A. (Drew) Wahlin
/s/ Donna L. Weaver
_______________________ Director November 8, 1999
Donna L. Weaver
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EXHIBIT INDEX
Exhibit Number Description Page
5.1 Opinion of Moffatt, Thomas, Barrett, Rock & Fields, Chtd........... 7
23.1 Consent of Arthur Andersen, LLP.................................... 8
23.2 Consent of Moffatt, Thomas, Barrett, Rock & Fields, Chtd.
Reference is made to Exhibit 5.1
99.1* The Company's 1999 Equity Incentive Plan
99.2 Form of Incentive and Nonstatutory Stock Option Grant Notice
under the 1999 Equity Incentive Plan............................... 9
99.3* The Company's 1999 Employee Stock Purchase Plan
99.4 1999 Employee Stock Purchase Plan Enrollment/Change Form........... 10
* Documents filed with the Company's Form SB-2 (File No. 333-74569)
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November 8, 1999 Exhibit 5.1
Netivation.com, Inc.
806 West Clearwater Loop, Suite N
Post Falls, Idaho 83854
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Netivation.com, Inc. (the "Company") of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission covering the offering of up to an aggregate of 1,250,000
shares of the Company's Common Stock, $0.01 par value (the "Shares"), with
respect to (a) 750,000 of the Shares issuable pursuant to its 1999 Equity
Incentive Plan (the "Incentive Plan") and (b) 500,000 of the Shares issuable
pursuant to its 1999 Employee Stock Purchase Plan (the "Employee Plan").
In connection with this opinion, we have examined the Registration Statement and
related Prospectus, The Company's Amended and Restated Certificate of
Incorporation and Bylaws, and such other documents, records, certificates,
memoranda and other instruments as we deem necessary as a basis for this
opinion. We have assumed the genuineness and authenticity of all documents
submitted to us as originals, the conformity to originals of all documents
submitted to us as copies thereof, and the due execution and delivery of all
documents where due execution and delivery are a prerequisite to the
effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Incentive Plan,
Employee Plan, the Registration Statement and related Prospectus, will be
validly issued, fully paid, and nonassessable (except as to shares issued
pursuant to certain deferred payment arrangements, which will be fully paid and
nonassessable when such deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement
Very truly yours,
Moffatt, Thomas, Barrett, Rock & Fields, Chtd.
By: /s/ David S. Jensen
____________________________
David S. Jensen
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Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated March 10, 1999
(except for the stock split and reincorporation discussed in Note 2 for which
the date was May 17, 1999) included in Netivation.com, Inc.'s Form SB-2 (File
No. 333-74569) and to all references to our Firm included in this Registration
Statement.
/s/ ARTHUR ANDERSEN LLP
-----------------------
ARTHUR ANDERSEN LLP
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Exhibit 99.2
Netivation.com, Inc.
Stock Option Grant Notice
Incentive or Nonstatutory
(1999 Equity Incentive Plan)
Netivation.com, Inc. (the "Company"), pursuant to its 1999 Equity Incentive Plan
(the "Plan"), hereby grants to Optionholder an option to purchase the number of
shares of the Company's Common Stock set forth below. This option is subject to
all of the terms and conditions as set forth herein and in the Stock Option
Agreement, the Plan and the Notice of Exercise, all of which are attached hereto
and incorporated herein in their entirety.
Optionholder: Optionholder
Date of Grant: Date
Number of Shares Subject to Option: # of shares
Exercise Price (Per Share): $ value
Total Exercise Price: Total Value
Type of Grant: [_] Incentive Stock Option [_] Nonstatutory Stock Option
Exercise Schedule: [_] Same as Vesting Schedule [_] Early Exercise Permitted
Vesting and Termination Schedule:
Date option rights
Date of earliest Number of Shares are terminated if
exercise (vesting) that can be exercised not exercised before
Payment: By one or a combination of the following items (described in the Stock
Option Agreement):
By cash or check
Pursuant to a Regulation T Program if the Shares are publicly traded
By delivery of already-owned shares if the Shares are publicly traded
By deferred payment if permitted for an Early Exercise of the option
Additional Terms/Acknowledgments: The undersigned Optionholder acknowledges
receipt of, and understands and agrees to, this Grant Notice, the Stock Option
Agreement and the Plan. Optionholder further acknowledges that as of the Date
of Grant, this Grant Notice, the Stock Option Agreement and the Plan set forth
the entire understanding between Optionholder and the Company regarding the
acquisition of stock in the Company and supersede all prior oral and written
agreements on that subject with the exception of (i) options previously granted
and delivered to Optionholder under the Plan, and (ii) the following agreements
only:
Other Agreements:
Netivation.com, Inc. Optionholder:
By:________________________________ ________________________________________
Signature Signature
Title:_____________________________ Date:___________________________________
Date:______________________________
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Exhibit 99.4
Netivation, Inc.
1999 Employee Stock Purchase Plan ("ESPP")
Enrollment/Change Form
Action Complete Sections:
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SECTION 1: [_] New Enrollment 2, 3, 6, 7
ACTIONS [_] Payroll Deduction Change 2, 4, 7
[_] Withdrawal 2, 5, 7
[_] Beneficiary Change (optional) 2, 6, 7
SECTION 2:
EMPLOYEE Name________________________________________________________________
DATA Last First MI
Home Address________________________________________________________
Street
____________________________________________________________________
City State Zip Code
Social Security #: ____________ -- ____________ -- ____________
SECTION 3:
NEW Effective: Payroll Deduction Amount: _____% of Earnings
ENROLLMENT [_] ______________ (whole percentage, maximum 15%)
[_] Initial Offering
SECTION 4:
PAYROLL Effective ________________________, I authorize the following new
DEDUCTION level of payroll deduction: _____% of Earnings (whole percentage,
CHANGE maximum 15%).
NOTE: You may decrease (but not increase) your rate of payroll
deductions, including to zero, once (and only once) during a
Purchase Period. However, you may change your rate of payroll
deductions (either an increase or a decrease) effective
either as of the first day of the next Purchase Period of the
ongoing Offering or the first day of the next Offering. To
withdraw entirely from the ongoing Offering and receive a
refund of your payroll deductions, complete Section 5.
SECTION 5:
WITHDRAWAL Effective with the pay period beginning _____________________, I
withdraw from the ESPP.
NOTE: Your election to withdraw from the ongoing Offering cannot be
changed, and you may not resume participation in the ESPP
prior to the commencement of the next Offering. In connection
with your withdrawal, your payroll deductions will be
refunded to you as soon as practicable, without interest.
NOTE: If your employment terminates for any reason, you will
automatically be withdrawn from the ESPP, and any payroll
deductions collected and not previously used to purchase
stock will automatically be refunded to you as soon as
practicable.
SECTION 6: Beneficiary Relationship of Beneficiary
BENEFICIARY
DESIGNATION _______________________________ ________________________________
(Optional)
SECTION 7:
AUTHORIZATION
I hereby authorize Netivation, Inc. to enroll me in the ESPP, to make regular
deductions in the amount indicated above, and to purchase shares for me. If I
have elected to withdraw from the ESPP, I authorize Netivation, Inc. to
distribute my accumulated deductions to me. Any authorization for payroll
deductions will continue until canceled or changed by me in accordance with the
terms of the ESPP. Deductions will cease upon the termination of my status as an
Eligible Employee, termination of the ESPP or upon my election to withdraw from
the ESPP. I agree to be bound by the terms and provisions of the ESPP, as
described in the official text of the ESPP, and any applicable offering
document.
Date:____________________ Signature:_________________________________________
