As filed with the Securities and Exchange Commission on October 18, 2000
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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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SMARTDISK CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 65-0733580
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(State or other jurisdiction of incorporation or (IRS Employer
organization) Identification Number)
3506 Mercantile Avenue, Naples, Florida 34104
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(Address of Principal Executive Offices)
SmartDisk Corporation
1999 Incentive Compensation Plan (as amended)
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(Full title of the Plans)
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Michael S. Battaglia
President and Chief Executive Officer
SmartDisk Corporation
3506 Mercantile Avenue
Naples, Florida 34104
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(Name and address of agent for service)
(941) 436-2500
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Telephone number, including area code, of agent for service
Copy to:
Michael W. Hein, Esq.
Greenberg Traurig, P.A.
1221 Brickell Avenue
Miami, Florida 33131
(305) 579-0500
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<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed number Proposed maximum Proposed
Title of securities of shares to be offering price maximum aggregate Amount of
to be registered registered(1) per share offering price registration fee
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<S> <C> <C> <C> <C>
Common Stock, $.001 par value .... 500,000 $ 10.81 (2) $ 5,405,000(2) $1,427
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Common Stock, $.001 par value .... 25,000 $ 35.00 (3) $ 875,000(3) $ 231
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Common Stock, $.001 par value .... 120,947 $ 0.90 (3) $ 108,852(3) $ 29
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Common Stock, $.001 par value .... 80,000 $ 47.25 (3) $ 3,780,000(3) $ 998
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Common Stock, $.001 par value .... 60,000 $ 47.25 (3) $ 2,835,000(3) $ 748
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TOTAL .............. -- $13,003,852 $3,433
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(1) Pursuant to Rule 416 of the Securities Act of 1933, as amended (the
"Securities Act"), this registration statement shall also cover any
additional shares of common stock which become issuable under our 1999
Incentive Compensation Plan (the "Plan") or that certain Stock Option
Agreement dated January 21, 2000 with Michael S. Battaglia, that certain
Stock Option Agreement dated March 6, 2000 with
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Vincent Fedele or that certain Stock Option Agreement dated March 6, 2000
with James M. Giarrusso by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the receipt
of consideration which results in an increase in the number of the
outstanding shares of our common stock.
(2) Estimated solely for the purpose of calculating the registration fee which
was computed in accordance with Rule 457(c) of the Securities Act, on the
basis of the average of the high and low prices of our stock as reported on
the Nasdaq National Market on October 13, 2000.
(3) Estimated solely for the purpose of calculating the registration fee which
was computed in accordance with Rule 457(h) of the Securities Act, on the
basis of the exercise prices of the options granted to Messrs. Battaglia,
Fedele and Giarrusso.
EXPLANATORY NOTE
SmartDisk Corporation has prepared this registration statement in
accordance with the requirements of Form S-8 under the Securities Act, to
register (i) 500,000 additional shares of common stock issuable pursuant to our
1999 Incentive Compensation Plan, as amended, which was approved by the
stockholders at the 2000 annual stockholders meeting and, among other things,
increased the total number of shares reserved for issuance under the plan from
2,500,000 to 3,000,000, (ii) an aggregate of 120,947 shares of common stock
issuable upon the exercise of options granted outside the 1999 Incentive
Compensation Plan as partial consideration in connection with SmartDisk's
acquisition of VST Technologies, Inc. and (iii) an aggregate of 165,000 shares
of common stock issuable upon the exercise of options granted outside the 1999
Incentive Compensation Plan to Messrs. Michael S. Battaglia, Vincent Fedele and
James M. Giarrusso.
PART I
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
Item 1. Plan Information.
Not filed as part of this Registration Statement pursuant to Note to
Part 1 of Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information.
Not filed as part of this Registration Statement pursuant to Note to
Part 1 of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
SmartDisk hereby incorporates by reference into this Registration
Statement the following documents or portions thereof as indicated:
(a) our Annual Report on Form 10-K, as amended by Form 10-K/A,
for the fiscal year ended December 31, 1999;
(b) our Quarterly Report on Form 10-Q for the fiscal quarter ended
March 31, 2000;
(c) our Quarterly Report on Form 10-Q for the fiscal quarter ended
June 30, 2000;
(d) our Current Reports on Form 8-K filed on March 21, 2000, Form
8-K filed on May 5, 2000, Form 8-K/A filed on May 8, 2000 and
Form 8-K/A filed on May 11, 2000;
(e) our definitive proxy statement dated April 19, 2000 filed in
connection with our 2000 Annual Meeting of Stockholders;
(f) all other reports filed by us pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act") since October 6, 1999; and
(g) the description of our Common Stock filed as a part of our
Registration Statement on Form 8-A dated September 7, 1999
(Registration No. 000-27257).
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In addition, all documents subsequently filed by us 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.
For purposes of this Registration Statement, any document or any
statement contained in a document incorporated or deemed to be incorporated
herein by reference shall be deemed to be modified or superseded to the extent
that a subsequently filed document or a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
herein by reference modifies or supersedes such document or such statement in
such document. Any 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.
SmartDisk has authority under Section 145 of the Delaware General
Corporation Law to indemnify our directors and officers to the extent provided
in such statute. Section 145 of the Delaware General Corporation Law provides
that a corporation may indemnify officers and directors, subject to certain
conditions and limitations, against certain liabilities and expenses in
connection with claims against them in their capacity as officers and directors,
if such person acted in good faith and in a manner he or she reasonably believed
to be in or not opposed to the best interests of the corporation, and with
respect to criminal proceedings if he or she had no reasonable cause to believe
his conduct was unlawful.
Our Certificate of Incorporation, as amended, provides that we may
indemnify our executive officers and directors to the fullest extent permitted
by law, including under certain circumstances against expenses (including
attorneys' fees), judgments, fines, and amounts paid in settlement incurred by
such persons in connection with an action, suit, or proceeding to which he or
she has been or is threatened to be made a party by reason of the fact that he
or she is or was our director or officer. We have also entered or will enter
into an agreement with each of our directors and some of our officers wherein we
have agreed or will agree to indemnify each of them to the fullest extent
permitted by law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits
See "Exhibit Index" on page 6 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, as
amended (the "Act");
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(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) shall 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 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 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 Naples, State of Florida on October 18, 2000.
SMARTDISK CORPORATION
By: /s/Michael S. Battaglia
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Michael S. Battaglia
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Michael S. Battaglia and Daniel E.
Reed, and each of them, his true and lawful attorney-in-fact, acting alone, with
full powers of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any or all amendments, including
any post-effective amendments, to this registration statement, and to file the
same, with exhibits thereto, and other documents to be filed in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorney-in-fact or his substitute, acting alone, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Act, this registration statement
has been signed by the following persons in the capacities and on the dates
indicated.
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<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Addison M. Fischer Chairman of the Board and Director October 18, 2000
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Addison M. Fischer
/s/ Michael S. Battaglia President and Chief Executive Officer and October 18, 2000
------------------------------------ Director
Michael S. Battaglia
/s/ Michael R. Mattingly Chief Financial Officer (Principal October 18, 2000
------------------------------------ Financial and Accounting Officer)
Michael R. Mattingly
Director October __, 2000
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D. James Bidzos
/s/ Anthony A. Ibarguen Director October 18, 2000
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Anthony A. Ibarguen
Director October __, 2000
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Hirotsugu Nakaiwa
/s/ Timothy Tomlinson Director October 18, 2000
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Timothy Tomlinson
Director October __, 2000
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Joseph M. Tucci
/s/ Hatim Tyabji Director October 18, 2000
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Hatim Tyabji
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EXHIBIT INDEX
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Exhibit Number Description
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4.1 -- Certificate of Incorporation of Registrant is incorporated by
reference to Exhibit 3.1 to the Registrant's Registration
Statement on Form S-1 (Registration No. 333-82793) filed on
July 14, 1999.*
4.2 -- Certificate of Correction of Restated Certificate of
Incorporation is incorporated by reference to Exhibit 3.3 to
the Registrant's Registration Statement on Form S-1
(Registration No. 333-82793) Amendment No. 3 filed on October
4, 1999.*
4.3 -- Registrant's 1999 Incentive Compensation Plan, as amended, is
incorporated by reference to Exhibit 10.3 to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended June 30,
2000 (File No. 000-27257).*
5.1 -- Opinion of Greenberg Traurig, P.A.**
23.1 -- Consent of Ernst & Young LLP.**
23.2 -- Consent of Arthur Andersen LLP.**
23.3 -- Consent of Greenberg Traurig, P.A. (contained in its opinion
filed as Exhibit 5.1 hereto)
24.1 -- Power of Attorney is included in the Signatures section of
this Registration Statement.
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* Previously filed.
** Filed herewith.
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