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As filed with the Securities and Exchange Commission on December 14, 2000
Registration No. 333-_____
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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ONVANTAGE, INC.
(Exact name of registrant as specified in its charter)
Nevada 98-019675
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
333 W. Santa Clara Street, Suite 1000 95113
San Jose, CA (Zip Code)
(Address of principal
executive offices)
Onvantage, Inc.
Amended and Restated
2000 Omnibus Equity Incentive Plan
Keneth E. Raasch Copy to:
Chief Executive Officer
Onvantage, Inc. Stephen M. Wurzburg, Esq.
333 W. Santa Clara Street, Suite 1000 Pillsbury Madison & Sutro LLP
San Jose, CA 95113 2550 Hanover Street
(408) 521-6100 Palo Alto, CA 94304
(Name, address and telephone (650) 233-4500
number of agent for service)
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CALCULATION OF REGISTRATION FEE
==============================================================================================================================
<S> <C> <C> <C> <C> <C>
Amount To Proposed Proposed Amount of
Title of Securities Be Maximum Offering Maximum Aggregate Registration
To Be Registered(1) Registered(2) Price Per Share(3) Offering Price Fee
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Common Stock, par value $0.001 per share: To
be issued under Onvantage, Inc. Amended and
Restated 2000 Omnibus Equity Incentive Plan 5,000,000 $5.625 $28,125,000 $7,425
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(1) The securities to be registered include options and rights to acquire common
stock.
(2) Pursuant to Rule 416(a), this registration statement also covers any
additional securities that may be offered or issued in connection with any stock
split, stock dividend, recapitalization or any other similar transaction
effected without the receipt of consideration, which results in an increase in
the number of the Registrant's outstanding shares of common stock. (3) Estimated
pursuant to Rule 457(h) under the Securities Act of 1933, as amended (the
"Securities Act") solely for the purposes of calculating the registration fee.
The price of the shares is based upon the average of the high and low prices of
the common stock on December 8, 2000, as reported on the OTC Bulletin Board.
The Registration Statement shall become effective upon filing in accordance with
Rule 462 under the Securities Act of 1933.
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PART I
ITEM 1. PROGRAM INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PROGRAM ANNUAL INFORMATION.*
* Information required by Part I to be contained in the Section 10(a) prospectus
is omitted from this Registration Statement in accordance with Rule 428 under
the Securities Act of 1933 (the "Securities Act") and the Note to Part I of Form
S-8.
PART II
INFORMATION REQUIRED IN THE INFORMATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Securities and
Exchange Commission are hereby incorporated by reference in this Registration
Statement:
(a) Registrant's Annual Report on Form 10-KSB for the fiscal year ended
February 29, 2000 (File No. 001-14815).
(b) Registrant's Quarterly Report on Form 10-QSB for the quarter ended
September 30, 2000 (File No. 001-14815).
(c) Registrant's Current Report on Form 8-K filed August 1, 2000, as
amended on Form 8-K/A filed October 2, 2000 (File No. 001-14815).
(d) Registrant's Quarterly Report on Form 10-QSB for the quarter ended May
31, 2000 (File No. 001-14815).
(e) The description of Registrant's common stock contained in Registrant's
Registration Statement on Form 10-SB filed February 5, 1999, as amended,
including any amendment or report filed for the purpose of updating such
description.
In addition, all documents subsequently filed by Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, 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 this
registration statement and to be a part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of common stock offered hereby has been
passed upon for the Registrant by Pillsbury Madison & Sutro LLP, Palo Alto,
California. As of the date of this Registration Statement, an entity in which
attorneys of Pillsbury Madison & Sutro LLP are partners beneficially own an
aggregate of 12,500 shares of Onvantage, Inc. common stock.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 78.037 of the General Corporation Law of Nevada authorizes a
company to include in its articles of incorporation a provision eliminating or
limiting the personal liability of its directors or officers to the company or
the corporation stockholders for damages for breach of fiduciary duty as a
director or officer. Such provision may not eliminate or limit liability,
however, for (i) acts or omissions which involve intentional misconduct, fraud,
or knowing violation of law, or (ii) the payment of illegal distributions.
Section 78.7502 authorizes, and in some cases requires, a corporation to
indemnify its directors, officers, employees, and other corporate agents under
certain circumstances as specified in the General Corporation Law of Nevada.
The Registrant's articles of incorporation state that the personal
liability of the directors of the corporation is eliminated to the fullest
extent permissible under the General Corporation Law of Nevada and that the
corporation shall, to the fullest extent permitted by the General Corporation
Law of Nevada, indemnify any and all persons whom the corporation shall have the
power to indemnify under such law. The Registrant's bylaws also authorize the
company to indemnify its directors and officers to the fullest extent
permissible under the General Corporation Law of Nevada. The Registrant has
obtained liability insurance for indemnification obligations that arise in
connection with certain wrongful acts of the Registrant's directors or officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index, which list of exhibits is incorporated herein by
reference.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made of the securities registered hereby, a post-effective amendment to
this Registration Statement:
(A) To include any prospectus required by Section
10(a)(3) of the Securities Act.
(B) 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% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(C) 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)(A) and (a)(1)(B) 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 Securities Exchange Act of 1934, as amended, that
are incorporated by reference in the Registration Statement.
PROVIDED, HOWEVER, that paragraphs (a)(1)(A) and (a)(1)(B)
of this section 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
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to the Commission by the registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934, as amended, that are
incorporated by reference in the 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.
(b) 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
Securities Exchange Act of 1934, as amended (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 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 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.
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 San Jose, State of California, on the 11th day of
December, 2000.
ONVANTAGE, INC.
By /S/ MARK LEMMA
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Mark Lemma
Vice President of Finance and Chief Financial Officer
(Principal Financial and Accounting Officer)
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Kenneth Raasch and Mark Lemma, and each
of them, his or her true and lawful attorneys-in-fact and agents, each with full
power of substitution and resubstitution, for him or her and in his or her name,
place and stead, in any and all capacities, to sign any and all amendments, to
this Registration Statement on Form S-8, and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that each of
said attorneys-in-fact and agents or their 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 below by the following persons in the
capacities and on the dates indicated.
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NAME TITLE DATE
<S> <C> <C>
Chairman of the Board and
/S/ KENNETH RAASCH Chief Executive Officer (Principal December 11, 2000
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Kenneth Raasch Executive Officer)
/S/ MARK LEMMA Vice President of Finance and Chief December 11, 2000
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Mark Lemma Financial Officer (Principal Financial
and Accounting Officer)
/S/ ANTHONY THOMOPOULOS Vice Chairman and Director December 11, 2000
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Anthony Thomopoulos
/S/ DAVID PAUL WIEBE Director December 11, 2000
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David Paul Wiebe
/S/ DENNIS HOLT Director December 13, 2000
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Dennis Holt
/S/ MICHAEL ARMAND HAMMER Director December 12, 2000
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Michael Armand Hammer
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INDEX TO EXHIBITS
Exhibit No. Description
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4.1 Onvantage, Inc. Amended and Restated 2000 Omnibus Equity
Incentive Plan
5.1 Opinion regarding legality of the securities being offered
23.1 Consent of Grant Thornton LLP, Independent Auditors
23.2 Consent of Bingham & Company, Independent Auditors
23.3 Consent of Pillsbury Madison & Sutro LLP (included in
Exhibit 5.1)
24.1 Powers of Attorney (see page 5).
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