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As filed with the Securities and Exchange Commission on August 23, 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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IBS INTERACTIVE, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 13-3817344
(State or Other Jurisdiction of (I.R.S. Employer Identification
Incorporation or Organization) No.)
2 Ridgedale Avenue, Suite 350
Cedar Knolls, New Jersey 07927
(Address of Principal Executive Offices, Including Zip Code)
1998 IBS INTERACTIVE, INC. STOCK OPTION PLAN
1999 IBS INTERACTIVE, INC. STOCK OPTION PLAN
2000 IBS INTERACTIVE, INC. STOCK OPTION PLAN
(Full Title of the Plan)
Nicholas R. Loglisci, Jr.
President, Chief Executive Officer and Chairman
IBS INTERACTIVE, INC.
2 Ridgedale Avenue, Suite 350
Cedar Knolls, New Jersey 07927
(973) 285-2600
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
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COPY TO:
Randi-Jean G. Hedin, Esq.
KELLEY DRYE & WARREN LLP
Two Stamford Plaza
281 Tresser Boulevard
Stamford, Connecticut 06901
(203) 324-1400
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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 Offering Price Per Aggregate Offering Price(1) Registration Fee
Share(1)
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Common Stock, 1,380,000 shares $ 4.00 $ 6,296,250 $ 1,457.28
par value $.01 per share
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(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) and (h) under the Securities Act of 1933, as
amended. The price per share is estimated based on the average of the high and
low trading prices for IBS Interactive, Inc.'s Common Stock on August 18, 2000,
as reported by the Nasdaq SmallCap Market.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission (the
"Commission") by IBS Interactive, Inc. (the "Registrant") are hereby
incorporated by reference in this Registration Statement:
o The Registrant's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1999, filed with the Commission on March 30, 2000;
o The Registrant's Quarterly Report on Form 10-QSB, filed with the Commission
on May 15, 2000;
o The Registrant's Quarterly Report on Form 10-QSB, filed with the Commission
on August 14, 2000;
o The Registrant's Current Report on Form 8-K, filed with the Commission on
March 24, 2000;
o The Registrant's amended Current Report on Form 8-K/A, filed with the
Commission on May 16, 2000;
o The Registrant's Current Report on Form 8-K, filed with the Commission on
August 8, 2000;
o The Registrant's Current Report on Form 8-K, filed with the Commission on
August 9, 2000; and
o The description of the Registrant's common stock, $.01 par value per share
(the "Common Stock"), contained in the Registrant's Registration Statement
on Form 8-A/A, as filed with the Commission on April 30, 1998 under Section
12 of the Securities Exchange Act of 1934, as amended, (the "Exchange
Act").
All reports and documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date hereof and 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 such securities then remaining unsold, shall also be deemed to
be incorporated by reference in this Registration Statement and to be a part
hereof commencing on the respective dates on which such reports and documents
are filed with the Commission. Any statement incorporated by reference herein
shall also be deemed to be modified or superseded for the purposes of this
Registration Statement and any amendment or supplement hereto to the extent that
a statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
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supersedes such statement. Any statement modified or superseded shall not be
deemed, except as so modified or superseded, to constitute part of this
Registration Statement or any such amendment or supplement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by Section 145 of the Delaware General Corporation Law,
the Registrant's restated certificate of incorporation (the "Certificate of
Incorporation") provides that to the fullest extent permitted by Delaware law no
director shall be personally liable to the Registrant or any stockholder for
monetary damages for breach of fiduciary duty as a director, except for
liability: (1) arising from payment of dividends or approval of a stock purchase
in violation of Section 174 of the Delaware General Corporation Law, (2) for any
breach of their duty of loyalty to the Registrant or the Registrant's
stockholders, (3) for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law or (4) for any action from
which the director derived an improper personal benefit. While the Certificate
of Incorporation provides protection from awards for monetary damages for
breaches of the duty of care, it does not eliminate a director's duty of care.
Accordingly, the Certificate of Incorporation will not affect the availability
of equitable remedies, such as an injunction, based on a director's breach of
the duty of care. The provisions of the Certificate of Incorporation described
above apply to officers of the Registrant only if they are directors of the
Registrant and are acting in their capacity as directors, and does not apply to
officers of the Registrant who are not directors.
In addition, the Registrant's by-laws provide that the Registrant will
indemnify its officers and directors, employees and agents, to the fullest
extent permitted by Delaware law. Under Delaware law, directors and officers, as
well as employees and individuals, may be indemnified against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement in
connection with specified actions, suits or proceedings, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation as a derivative action) if they acted in good faith and
in a manner they reasonably believed to be in or not opposed to the Registrant's
best interests, and with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful.
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Section 145 of the Delaware General Corporation Law permits a
corporation to purchase and maintain insurance on behalf of any person who is or
was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against such person and incurred by
such person in such capacity, or arising out of their status as such, whether or
not the corporation would have the power to indemnify directors and officers
against such liability. Accordingly, the Registrant has obtained officers' and
directors' liability insurance of $3 million for members of its board of
directors and executive officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT NO. DESCRIPTION
4.1 Restated Certificate of Incorporation (incorporated by reference
to Exhibit 3.1 to the Registrant's Registration Statement on
Form SB-2, File No. 333-47741, filed on April 23, 1998).
4.2 Restated By-Laws of the Registrant (incorporated by reference to
Exhibit 3.2 to the Registrant's Registration Statement on Form
SB-2, File No. 333-47741, filed on April 23, 1998).
4.3 1998 IBS Interactive, Inc. Stock Option Plan (incorporated by
reference to Exhibit 10.14 to the Registrant's Registration
Statement on Form SB-2, File No. 333-47741, filed on April 23,
1998).
4.4 1999 IBS Interactive, Inc. Stock Option Plan (incorporated by
reference to the Registrant's Proxy Statement for the Annual
Meeting of Stockholders held on June 4, 1999).
4.5 2000 IBS Interactive, Inc. Stock Option Plan (incorporated by
reference to the Registrant's Proxy Statement for the Annual
Meeting of Stockholders held on June 9, 2000).
5* Opinion of Kelley Drye & Warren LLP regarding the legality of
the Common Stock being registered hereunder.
23.1* Consent of BDO Seidman, LLP.
23.2* Consent of Ernst & Young, LLP.
23.3* Consent of Kelley Drye & Warren LLP (included in Exhibit 5.1).
25* Power of Attorney (incorporated by reference to the signature
page of this Registration Statement).
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* Filed herewith.
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ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes that it will:
(1) File, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement to:
(i) Include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) Reflect in the prospectus any facts or events which,
individually or together represent a fundamental change in the information in
this 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) if, in the aggregate, the changes in volume and price represent no more
than 20 percent change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective Registration Statement.
(iii) Include any additional or changed material information
on the plan of distribution;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply
if the Registration Statement is on Form S-3, Form S-8 or Form F-3, and 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 Securities
Exchange Act of 1934 that are incorporated by reference in this Registration
Statement.
(2) For determining liability under the Securities Act, treat each
post-effective amendment as a new registration statement of the securities
offered, and the offering of the securities at that time to be the initial BONA
FIDE offering.
(3) File a post-effective amendment to remove from registration any of
the securities that remain unsold at the end of the offering.
(b) 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 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, 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 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
of 1933 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
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such indemnification is against public policy as expressed in the Securities Act
of 1933, as amended, 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 of 1933, as amended, 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
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 Cedar Knolls, state of New Jersey, on this 22nd day
of August, 2000.
IBS INTERACTIVE, INC.
By: /s/ Nicholas R. Loglisci, Jr.
____________________________________
Nicholas R. Loglisci, Jr.
President, Chief Executive Officer
and Chairman
POWER OF ATTORNEY
Each person whose individual signature appears below hereby authorizes
Nicholas R. Loglisci, Jr. and Roy E. Crippen, III, and each of them, as
attorneys-in-fact, with full power of substitution, to execute in the name and
on behalf of such person, individually and in each capacity stated below, and to
file any and all amendments to this Registration Statement, including any and
all post-effective amendments.
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 date indicated:
Signature Title Date
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President, Chief Executive
Officer, Chairman and
Director (Principal
/s/ Nicholas R. Loglisci, Jr. Executive Officer) August 22, 2000
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Nicholas R. Loglisci, Jr.
Chief Operating Officer
/s/ Roy E. Crippen, III and Director August 22, 2000
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Roy E. Crippen, III
Chief Information Officer
/s/ Frank R. Altieri, Jr. and Director August 22, 2000
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Frank R. Altieri, Jr.
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Signature Title Date
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Chief Financial Officer
(Principal Financial Officer
/s/ Howard B. Johnson and Accounting Officer) August 22, 2000
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Howard B. Johnson
/s/ Susan Holloway Torricelli Director August 22, 2000
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Susan Holloway Torricelli
/s/ David Faeder Director August 22, 2000
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David Faeder
/s/ Bruce E. Fike Director August 22, 2000
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Bruce E. Fike
/s/ Ahmed Al-Khaled Director August 22, 2000
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Ahmed Al-Khaled
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
4.1 Restated Certificate of Incorporation (incorporated by reference
to Exhibit 3.1 to the Registrant's Registration Statement on
Form SB-2, File No. 333-47741, filed on April 23, 1998).
4.2 Restated By-Laws of the Registrant (incorporated by reference to
Exhibit 3.2 to the Registrant's Registration Statement on Form
SB-2, File No. 333-47741, filed on April 23, 1998).
4.3 1998 IBS Interactive, Inc. Stock Option Plan (incorporated by
reference to Exhibit 10.14 to the Registrant's Registration
Statement on Form SB-2, File No. 333-47741, filed on April 23,
1998).
4.4 1999 IBS Interactive, Inc. Stock Option Plan (incorporated by
reference to the Registrant's Proxy Statement for the Annual
Meeting of Stockholders held on June 4, 1999).
4.5 2000 IBS Interactive, Inc. Stock Option Plan (incorporated by
reference to the Registrant's Proxy Statement for the Annual
Meeting of Stockholders held on June 9, 2000).
5* Opinion of Kelley Drye & Warren LLP regarding the legality of
the Common Stock being registered hereunder.
23.1* Consent of BDO Seidman, LLP.
23.2* Consent of Ernst & Young, LLP.
23.3* Consent of Kelley Drye & Warren LLP (included in Exhibit 5.1).
25* Power of Attorney (incorporated by reference to the signature
page of this Registration Statement).
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* Filed herewith.
