As filed with the Securities and Exchange Commission on October 29, 1999
Registration No. 333-_____
=========================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------
INTERWORLD CORPORATION
(Exact name of registrant as specified in charter)
Delaware 7372 13-3818716
(State or other (Primary Standard (I.R.S. Employer
jurisdiction of Industrial Classification Identification Number)
incorporation or Code Number)
organization)
-------------------
395 HUDSON STREET, 6TH FLOOR
NEW YORK, NEW YORK 10014
(212) 301-2500
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
INTERWORLD CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
-------------------
AMY AGUILAR-BROWN, ESQ.
Vice President, Legal Affairs and Secretary
Interworld Corporation
395 Hudson Street, 6th Floor
New York, New York 10014
(212) 301-2500
(Name, address, including zip code, and telephone number,
including area code, of agent for service of process)
-------------------
With copies to:
James M. Lurie, Esq.
O'Sullivan Graev & Karabell, LLP
30 Rockefeller Plaza
New York, New York 10112
(212) 408-2400
-------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=============================== ================= ================ ================ ==============
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Each Class of to be Offering Price Aggregate Registration
Securities to be Registered Registered* Per Share* Offering Price** Fee
- ------------------------------- ----------------- ---------------- ---------------- --------------
<S> <C> <C> <C> <C>
Common stock, par value
Common Stock; $.01 par value 1,000,000 shares $41.625 $41,625,000.00 $11,571.25
=============================== ================= ================ ================ ==============
</TABLE>
* Plus an indeterminate number of additional shares which may be offered and
issued to prevent dilution resulting from stock splits, stock dividends or
similar transactions.
** Estimated pursuant to Rules 457(c) and (h) under the Securities Act of 1933,
as amended (the "Securities Act"), based on the average of the high and low
prices for the Common Stock as quoted on the Nasdaq National Market on
October 27, 1999.
<PAGE>
PART I
INFORMATION REQUIRED IN THE
SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I will be sent
or given to employees as specified by Rule 428(b)(1). Such documents are not
being filed with the Securities and Exchange Commission (the "Commission")
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424. Such documents and the documents incorporated
by reference in this Registration Statement pursuant to Item 3 of Part II of
this Form, taken together, constitute a prospectus that meets the requirements
of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
(a) The following documents, which have been filed by Interworld
Corporation, a Delaware corporation (the "Corporation"), with the
Commission, are incorporated herein by reference:
(i) The Corporation's definitive Prospectus dated August 11, 1999, as
filed with the Commission pursuant to the Securities Act.
(ii) The Corporation's Form 10-Q for the three and nine months ended
September 30, 1999 as filed with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
(iii) The description of the Common Stock contained in the
Corporation's Registration Statement on Form 8-A, filed with the
Commission pursuant to the Exchange Act.
(b) In addition, all documents filed by the Corporation with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act, subsequent to the date of this Registration Statement
and 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 by reference herein and to be part hereof from the date
of the filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
The O'Sullivan Graev & Karabell Profit Sharing Plan owns 22,500 shares of
common stock of the Corporation, and Robert Seber, a member of the firm owns
5,000 shares of common stock of the Corporation.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law (the "DGCL") 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 Exchange Act. Articles
Nine and Ten of the Corporation's Restated Certificate of Incorporation provide
for indemnification of its directors and officers and permissible
indemnification of employees and other agents to the maximum extent permitted by
the DGCL.
Reference is made to the form of Director Indemnification Agreement filed
as Exhibit 10.3 to the Corporation's Registration Statement on Form S-1 (File
No. 333-79879) (the "Form S-1"), which provides for indemnification of
directors.
II-1
<PAGE>
Reference is made to the form of Underwriting Agreement filed as Exhibit
1.1 to the Form S-1, which sets forth certain indemnification provisions.
In addition, the Corporation maintains liability insurance for its officers
and directors.
Item 7. Exemption from Registration Claimed
Not applicable.
ITEM 8. Exhibits
Exhibit Description
------- -----------
No.
--
4.1 Amended and Restated Certificate of Incorporation of InterWorld
Corporation
4.2 By-laws of InterWorld Corporation (filed as Exhibit 3.2 to the Form
S-1 and incorporated herein by reference)
4.3 InterWorld Corporation Employee Stock Purchase Plan (filed as Exhibit
10.2 to the Form S-1 and incorporated herein by reference)
5 Opinion of O'Sullivan Graev & Karabell, LLP (including the consent of
such firm) regarding the legality of securities being offered
23.1 Consent of O'Sullivan Graev & Karabell, LLP (included in their opinion
filed as Exhibit 5 hereto)
23.2 Consent of PricewaterhouseCoopers LLP
24 Powers of Attorney (See page 4 of this Registration Statement)
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:
II-2
<PAGE>
(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 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) 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) 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) 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 by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 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 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.
II-3
<PAGE>
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 New York, State of New York, on this 29th day of
October, 1999.
INTERWORLD CORPORATION
By: /s/ Michael J. Donahue
-------------------------------
Michael J. Donahue
Chairman
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below under the heading "Signature" constitutes and appoints Michael J. Donahue,
Alan J. Andreini and Peter Schwartz, or any 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
or all Registration Statements on Form S-8 with respect to any securities to be
offered and issued by InterWorld Corporation, a Delaware corporation (the
"Registrant"), pursuant to any employee benefit plan (as such term is defined in
the General Instructions to Form S-8) of the Registrant and any or all
amendments to any such Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, granting unto
said attorneys-in-fact and agents, each acting alone, full power and authority
to do and perform each and every act and thing requisite and necessary to be
done in and about the premises, as fully for all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, each acting alone, or his substitute or
substitutes, 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 on the 29th day of October, 1999, by the
following persons in the capacities indicated.
SIGNATURE TITLE
--------- -----
/s/ Alan J. Andreini
- --------------------------------------
Alan J. Andreini President and Chief Executive Officer
(principal executive officer) and
Director
/s/ Peter Schwartz
- --------------------------------------
Peter Schwartz Chief Financial Officer (principal
financial and accounting officer)
/s/ Michael J. Donahue
- --------------------------------------
Michael J. Donahue Chairman
/s/ Kenneth G. Langone
- --------------------------------------
Kenneth G. Langone Director
/s/ Joseph C. Robinson
- --------------------------------------
Joseph C. Robinson Director
II-4
<PAGE>
/s/ Yves Sisteron
- --------------------------------------
Yves Sisteron Director
/s/ Jack Slevin
- --------------------------------------
Jack Slevin Director
/s/ Russell West
- --------------------------------------
Russell West Director
II-5
<PAGE>
Exhibit Description PAGE
------- ----------- ----
No.
---
4.1 Amended and Restated Certificate of
Incorporation of InterWorld Corporation II-7
4.2 By-laws of InterWorld Corporation (filed as
Exhibit 3.2 to the Form S-1 and incorporated
herein by reference)
4.3 InterWorld Corporation Employee Stock Purchase
Plan (filed as Exhibit 10.2 to the Form S-1
and incorporated herein by reference)
5 Opinion of O'Sullivan Graev & Karabell, LLP
(including the consent of such firm)
regarding the legality of securities being
offered II-13
23.1 Consent of O'Sullivan Graev & Karabell, LLP
(included in their opinion filed as Exhibit 5
hereto)
23.2 Consent of PricewaterhouseCoopers LLP II-14
24 Powers of Attorney (See page 4 of this
Registration Statement)
II-6
<PAGE>
EXHIBIT 4.1
-----------
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
INTERWORLD CORPORATION
-------------------------------------------------------
ARTICLE I
NAME
The name of the corporation is InterWorld Corporation (the "Corporation").
ARTICLE II
REGISTERED OFFICE AND AGENT
The address of the initial registered office of this corporation in this
state is c/o National Registered Agents, Inc., 9 East Loockerman Street, City of
Dover, County of Kent, State of Delaware 19901 and the name of the registered
agent at said address is National Registered Agents, Inc.
ARTICLE III
OBJECT AND PURPOSES
The purpose of the corporation is to engage in any lawful act or activity
for which corporations may be organized under the corporation laws of the State
of Delaware.
ARTICLE IV
CPITAL STOCK
The Corporation shall be authorized to issue 115,000,000 shares of all
classes, consisting of (i) 100,000,000 shares of Common Stock, $.01 par value
(the "Common Stock"), and (ii) 15,000,000 shares of Preferred Stock, $.01 par
value (the "Preferred Stock").
Subject to the limitations and in the manner provided by law, shares of the
Preferred Stock may be issued from time to time in series, and the Board of
Directors of the Corporation or a duly-authorized committee of the Board of
Directors of the Corporation, in
II-7
<PAGE>
accordance with the laws of the State of Delaware, is hereby authorized to
determine or alter the relative rights, powers (including voting powers),
preferences, privileges and restrictions granted to or imposed upon Preferred
Stock or any wholly unissued series of shares of Preferred Stock, and to
increase or decrease (but not below the number of shares of any series of
Preferred Stock then outstanding) the number of shares of any such series
subsequent to the issue of shares of that series. In case the number of shares
of any series shall be so decreased, the shares constituting such decrease shall
upon the taking of any action required by applicable law resume the status that
they had prior to the adoption of the resolution originally fixing the number of
shares of such series.
ARTICLE V
DIRECTORS
1. The number of directors of the corporation shall be such as from time to
time shall be fixed by, or in the manner provided in the By-Laws. Election of
directors need not be by ballot unless the By-Laws so provide.
2. The Board of Directors shall have power without the assent or vote of
the stockholders:
(a) To make, alter, amend, change, add to or repeal the By-Laws of the
corporation; to fix and vary the amount to be reserved for any proper
purpose; to authorize and cause to be executed mortgages and liens upon all
or any part of the property of the corporation; to determine the use and
disposition of any surplus or net profits; and to fix the times for the
declaration and payment of dividends.
(b) To determine from time to time whether, and to what times and
places, and under what conditions the accounts and books of the corporation
(other than the stock ledger) or any of them, shall be open to the
inspection of the stockholders.
3. The directors in their discretion may submit any contract or act for
approval or ratification at any annual meeting of the stockholders or at any
meeting of the stockholders called for the purpose of considering any such act
or contract, and any contract or act that shall be approved or be ratified by
the vote of the holders of a majority of the stock of the corporation which is
represented in person or by proxy at such meeting and entitled to vote thereat
(provided that a lawful quorum of stockholders be there represented in person or
by proxy) shall be as valid and as binding upon the corporation and upon all the
stockholders as though it had been approved or ratified by every stockholder of
the corporation, whether or not the contract or act would otherwise be open to
legal attack because of directors' interest, or for any other reason.
4. In addition to the powers and authorities hereinbefore or by statute
expressly conferred upon them, the directors are hereby empowered to exercise
all such powers and do all such acts and things as may be exercised or done by
the corporation; subject, nevertheless, to the provisions of the statutes of
Delaware, of this certificate, and to any by-laws from time to time made by the
stockholders; provided, however, that no by-laws so made shall invalidate any
prior act of the directors which would have been valid if such by-law had not
been made.
II-8
<PAGE>
ARTICLE VI
INDEMNIFICATION OF DIRECTORS
No director shall be liable to the corporation or any of its stockholders
for monetary damages for breach of fiduciary duty as a director, except with
respect to (1) a breach of the director's duty of loyalty to the corporation or
its stockholders, (2) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (3) liability under
Section 174 of the Delaware General Corporation Law or (4) a transaction from
which the director derived an improper personal benefit, it being the intention
of the foregoing provision to eliminate the liability of the corporation's
directors to the corporation or its stockholders to the fullest extent permitted
by Section 102(b)(7) of the Delaware General Corporation Law, as amended from
time to time. The corporation shall indemnify to the fullest extent permitted by
Sections 102(b)(7) and 145 of the Delaware General Corporation Law, as amended
from time to time, each person that such Sections grant the corporation the
power to indemnify.
ARTICLE VII
COMPROMISE OR ARRANGEMENT WITH CREDITORS
Whenever a compromise or arrangement is proposed between this corporation
and its creditors or any class of them and/or between this corporation and its
stockholders or any class of them, any court or equitable jurisdiction within
the State of Delaware, may, on the application in a summary way of this
corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for this corporation under the provisions of
Section 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this corporation under
the provisions of Section 279 Title 8 of the Delaware Code order a meeting of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders of this corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing
three-fourths (3/4) in value of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this corporation, as the case may
be, agree to any compromise or arrangement and to any reorganization of this
corporation as consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this corporation, as the case may be, and also on this
corporation.
ARTICLE VIII
AMENDMENTS
The corporation reserves the right to amend, alter, change or repeal any
provision contained in this certificate of incorporation in the manner now or
hereafter prescribed by law, and all rights and powers conferred herein on
stockholders, directors and officers are subject to this reserved power.
II-9
<PAGE>
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
INTERWORLD CORPORATION
--------------------------------
InterWorld Corporation, a Delaware corporation (the "Corporation"), does
hereby certify that:
FIRST: The present name of the Corporation is "InterWorld Corporation." The
Corporation was originally incorporated under the name "InterWorld Technology
Ventures, Inc." The date of filing of the original Certificate of Incorporation
of the Corporation with the Secretary of State of the State of Delaware was
March 28, 1995. An Amended and Restated Certificate of Incorporation of the
Corporation was filed with the Secretary of State of the State of Delaware on
July 12, 1996. An Amended and Restated Certificate of Incorporation of the
Corporation was filed with the Secretary of State of the State of Delaware on
December 17, 1996. An Amended and Restated Certificate of Incorporation of the
Corporation was filed with the Secretary of State of the State of Delaware on
May 21, 1997. An Amended and Restated Certificate of Incorporation of the
Corporation was filed with the Secretary of State of the State of Delaware on
September 10, 1997. An Amended and Restated Certificate of Incorporation of the
Corporation was filed with the Secretary of State of the State of Delaware on
February 20, 1998. A Restated Certificate of Incorporation of the Corporation
was filed with the Secretary of State of the State of Delaware on January 12,
1999. An Amended and Restated Certificate of Incorporation was filed with the
Secretary of State of the State of Delaware on August 10, 1999.
SECOND: This Amended and Restated Certificate of Incorporation (the
"Certificate") amends and restates in its entirety the present Certificate of
Incorporation of the Corporation. This Certificate has been duly adopted and
approved by the Board of Directors of the Corporation by unanimous written
consent in lieu of a meeting thereof in accordance with the provisions of
Sections 141(f), 242 and 245 of the General Corporation Law of the State of
Delaware and by the Stockholders of the Corporation by written consent in lieu
of a meeting thereof in accordance with the provisions of Sections 228(a), 242
and 245 of the General Corporation Law at the State of Delaware.
THIRD: This Certificate shall become effective immediately upon its filing
with the Secretary of State of the State of Delaware.
FOURTH: Upon the filing with the Secretary of State of the State of
Delaware of this Certificate, the Certificate of Incorporation of the
Corporation shall be amended and restated in its entirety to read as set forth
on Exhibit A attached hereto.
II-10
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
executed by a duly authorized officer this the __ day of August, 1999 and hereby
affirms that the facts stated herein are true.
INTERWORLD CORPORATION
By: /s/ Alan J. Andreini
-------------------------------------
Alan J. Andreini
President and Chief Executive Officer
II-11
<PAGE>
EXHIBIT A
---------
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
INTERWORLD CORPORATION
II-12
<PAGE>
EXHIBIT 5
---------
October 29, 1999
InterWorld Corporation
395 Hudson Street, 6th Floor
New York, New York 10014
InterWorld Corporation
1,000,000 Shares of Common Stock, $.01 Par Value
------------------------------------------------
Dear Sirs:
We have acted as counsel to InterWorld Corporation, a Delaware corporation
(the "Company"), in connection with the registration under the Securities Act of
1933, as amended, of 1,000,000 shares (the "Shares") of Common Stock, $.01 par
value, of the Company for issuance to certain employees pursuant to the
Company's Employee Stock Purchase Plan (the "Plan").
In that connection, we have examined originals, or copies certified or
otherwise identified to our satisfaction, of such documents, corporate records
and other instruments as we have deemed necessary for the purposes of this
opinion. In our examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, the conformity
to original documents of all documents submitted to us as certified or
photostatic copies and the authenticity of the originals of such latter
documents.
Based upon the foregoing, we are of the opinion that the issuance of the
Shares pursuant to the Plan have been duly authorized and, when issued,
delivered and paid for in accordance with the provisions of the Plan, the Shares
will be validly issued, fully paid and nonassessable.
We are admitted to the Bar of the State of New York and we express no
opinion as to the laws of any other jurisdiction other than the General
Corporation Law of the State of Delaware and the federal laws of the United
States of America.
We hereby consent to the inclusion of this opinion as Exhibit 5 to the
Registration Statement on Form S-8 being filed by the Company to register the
Shares. In giving such consent, we do not thereby admit that we are in the
category of persons whose consent is required under Section 7 of the Securities
Act.
Very truly yours,
/s/ O'Sullivan Graev & Karabell, LLP
II-13
<PAGE>
EXHIBIT 23.2
------------
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 3, 1999 relating to the
financial statements and financial statement schedules, which appears in
Interworld Corporation's Registration Statement on Form S-1 dated August 9,
1999.
PricewaterhouseCoopers LLP
New York, New York
October 27, 1999
II-14
