<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 15, 1999
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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BIZNESSONLINE.COM, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 7375 06-1519132
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
1720 ROUTE 34
P.O. BOX 1347
WALL, NEW JERSEY 07719
(732) 280-6408
(732) 280-6409 (FAX)
(Address and telephone number of principal executive offices and principal
place
of business including zip code and telephone number)
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BIZNESSONLINE.COM, INC. 1999 STOCK INCENTIVE PLAN
BIZNESSONLINE.COM, INC. 1999 NON-EMPLOYEE DIRECTOR STOCK INCENTIVE PLAN
(Full titles of Plans)
------------------------
MARK E. MUNRO
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER
BIZNESSONLINE.COM, INC.
1720 ROUTE 34
P.O. BOX 1347
WALL, NEW JERSEY 07719
(732) 280-6408
(732) 280-6409 (FAX)
(Name, address and telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------
TITLE OF SECURITIES AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT
TO BE REGISTERED TO BE OFFERING PRICE AGGREGATE OFFERING OF
REGISTERED PER SHARE PRICE REGISTRATION
FEE
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1999 Stock Incentive Plan
Options 500,000 N/A N/A N/A
Common Stock,
(par value $.01) 129,825(1) $6.94(2) $900,986 $250.47
---------- ----------- -----------
370,175(1) $10.30(3) $3,811,090 $1,059.48
- -----------------------------------------------------------------------------------------------------------------
1999 Non-Employee Director Stock Incentive Plan
Options 50,000 N/A N/A N/A
Common Stock,
(par value $.01) 27,500(1) $6.94(2) $190,850 $53.06
---------- ----------- -----------
22,500(1) $10.00(3) $225,000 $62.55
- ----------------------------------------------------------------------------------------------------------------
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1999 Stock Incentive Plan and
the 1999 Non-Employee Director Stock Incentive Plan because 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 BiznessOnline.com, Inc.
(2) Estimated pursuant to Rule 457(c) and (h) solely for purposes of
calculating the amount of registration fee, based on the average of the
high and low prices per share of the Common Stock of the BiznessOnline.com,
Inc. on October 14, 1999 as reported on the NASDAQ National Market.
(3) Represents certain shares subject to options outstanding as of
October 14, 1999, and the weighted average per share exercise price
therefor, pursuant to Rule 457 (h)(1).
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I will be
sent or given to participants in the BiznessOnline.com, Inc. 1999 Stock
Incentive Plan and the 1999 Non-Employee Director Stock Incentive Plan
(collectively, the "Plans") as specified by Rule 428(b)(1) of the Securities Act
of 1933, as amended (the "Securities Act"). In accordance with the instructions
to Part I of Form S-8, such documents will not be filed with the Commission (the
"Commission") either as part of this Registration Statement or as prospectuses
or prospectus supplements pursuant to Rule 424 under the Securities Act. These
documents and the documents incorporated by reference pursuant to Item 3 of Part
II of this Registration Statement, taken together, constitute the prospectus as
required by Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY PREFERENCE
BiznessOnline.com, Inc. (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents previously
filed by it with the Commission:
(a) The Registrant's Prospectus dated and filed on May 12, 1999
pursuant to Rule 424(b) under the Securities Act.
(b) The Registrant's Form 10-Q filed on June 25, 1999 for the
quarter ended March 31, 1999, and the Registrant's Form 10-Q
filed on August 13, 1999 for the quarter ended June 30, 1999.
(c) The description of the Registrant's common stock, par value $.01
per share ("Common Stock"), contained in the Registrant's
Registration Statement No. 000-25957 on Form 8-A12G filed on May
4, 1999.
In addition, all documents and reports filed by the Registrant
subsequent to the date hereof pursuant to Sections 13(a), 13(c), 14, and 15(d)
of the Securities Exchange Act of 1934 (the "Exchange Act"), and prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
part hereof from the date of filing of such
2
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documents or reports. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superceded for purposes of this Registration Statement 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
supersedes such statement. Any such 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
Michael F. Sweeney (the Registrant's Assistant Secretary) and Robert M.
Duffy, both partners in the law firm of Duffy & Sweeney, LLP, counsel to the
Registrant, are partners in a general partnership which owns 62,944 shares of
the Registrant's Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "DGCL")
allows a Delaware corporation to indemnify its present and former directors
and officers and other persons under certain conditions. Article Twelfth of
the Registrant's Certificate of Incorporation provides that each director and
officer of the Registrant made a party to or otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter, a "proceeding"), by reason of the fact that such
person is or was a director or officer of the Registrant, or is or was
serving at the request of the Registrant as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise (including services with respect to employee benefit plans), shall
be indemnified and held harmless by the Registrant to the fullest extent
authorized by the DGCL against all expense, liability and loss reasonably
incurred by such person, PROVIDED, HOWEVER, that the Registrant shall
indemnify such person in any proceeding initiated by such person only if such
proceeding was authorized by the Directors of the Registrant. The right of
indemnification described herein includes the right to be paid expenses
incurred in defending any proceeding in advance of its final disposition,
provided that such person, if required by the DGCL, undertakes to repay all
amounts advanced if it shall be ultimately determined that such director or
officer is not entitled to be indemnified under Article Twelfth or otherwise.
The effect of these provisions is to require the Registrant to the extent
permitted by law to indemnify the directors and officers of the Registrant
for any claim arising against such persons in their official capacities if
such person acted in good faith and in a manner that he reasonably believed
to be in or not opposed to the best interests of the Registrant, and with
respect to any criminal proceeding, had no reasonable cause to believe his
conduct was unlawful. These provisions may be sufficiently broad to permit
indemnification of the Registrant's directors and officers for liabilities
arising under the Securities Act.
Section 102(b)(7) of the DGCL allows a Delaware corporation to adopt a
charter provision eliminating or limiting the personal liability of directors to
the corporation or its stockholders for breach of fiduciary duty as directors,
provided that such provision may not eliminate or limit the liability of
directors for:
- any breach of the director's duty of loyalty to the
corporation or its stockholders;
- any acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law;
- any payment of a dividend or approval of a stock purchase that
is illegal under Section 174 of the DGCL; or
- any transaction from which the director derived an improper
personal benefit.
Article Twelfth of the Registrant's Certificate of Incorporation states
that to the maximum extent permitted by Section 102(b)(7) of the DGCL, the
Registrant's directors shall not be personally liable to the corporation or its
stockholders for monetary damages resulting from such director's breach of
fiduciary duty as a director, except for liability involving one of the four
exceptions described above. In addition, the Registrant's Certificate of
Incorporation provides that if the DGCL is amended to authorize the further
limitation or elimination of the liability of a director, then the liability of
the directors shall be eliminated or limited to the fullest extent permitted by
the DGCL, as so amended.
Section 145 of the DGCL allows a corporation to obtain insurance on
behalf of its directors and officers against liabilities incurred by them in
those capacities. Article Twelfth of the Registrant's Certificate of
Incorporation provides that the corporation may maintain insurance to protect
the corporation and its directors and officers against expenses, liabilities and
losses whether or not the corporation would have the power to indemnify such
person against such expense, liability or loss under the DGCL. The Registrant
has procured a directors' and officers' liability and company reimbursement
liability insurance policy that will (a) insure directors and officers against
losses (above a deductible amount) arising from certain claims made against them
by reason of certain acts done or attempted by such directors or officers and
(b) insure the corporation against losses (above a deductible amount) arising
from any such claims, but only if the corporation is required or permitted to
indemnify such directors or officers for such losses under statutory or common
law or under provisions of its Certificate of Incorporation or By-Laws.
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Reference is also made to Section 7 of the Underwriting Agreement
relating to the Registrant's initial public offering, effected pursuant to a
Registration Statement on Form SB-2 (file no. 333-73067), which provides for the
indemnification of officers, directors and controlling persons of the Registrant
against certain liabilities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Exhibit
NUMBER DESCRIPTION
4 Instrument Defining Rights of Stockholders. Reference is made to the
Registrant's Registration Statement No. 000-25957 on Form 8-A12G,
together with all amendments thereto, which is incorporated herein by
reference pursuant to Item 3(b) of this Registration Statement.
5 Opinion of Duffy & Sweeney, LLP
23.1 Consent of KPMG LLP, Independent Auditors
23.2 Consent of Duffy & Sweeney, LLP (included in Exhibit 5 to this
Registration Statement)
24 Power of Attorney (included on signature page of the Registration
Statement)
ITEM 9. UNDERTAKINGS
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:
(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 this 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 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 a prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more that a 20 percent change
in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
(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 1(a) and 1(b) shall not
apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
the periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
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(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment to this
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.
(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.
(4) That, for the 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
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.
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to existing
provisions or arrangements whereby the Registrant may indemnify a
director, officer or controlling person of the Registrant against
liabilities arising under the Securities Act, 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, 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 Wall, New Jersey, on this 14th day of October, 1999.
BiznessOnline.com, Inc.
By /s/Mark E. Munro
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Mark E. Munro
Chairman of the Board, President and
Chief Executive Officer
By /s/Daniel J. Sullivan
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Daniel J. Sullivan
Vice President, Chief Financial Officer and
Principal Accounting Officer
5
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POWER OF ATTORNEY
KNOW ALL YE MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Mark E. Munro and Daniel J. Sullivan, and
either of them, his or her true and lawful attorney-in-fact and agent 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 or all amendments to this
Registration Statement, and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in -fact and agent, 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
attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and date
indicated:
<TABLE>
<CAPTION>
NAME POSITION DATE
- ---- -------- ----
<S> <C> <C>
/s/ S. Keith London Executive Vice President and Director October 14, 1999
- ---------------------------
S. Keith London
/s/ Robert A. Byrne Director October 14, 1999
- ---------------------------
Robert A. Byrne
/s/ David Conboy Director October 14, 1999
- ---------------------------
David Conboy
/s/ John B. Fraser Director October 14, 1999
- ----------------------------
John B. Fraser
/s/ Joseph Luciano Director October 14, 1999
- ----------------------------
Joseph Luciano
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
4 Instrument Defining Rights of Stockholders. Reference is made to the
Registrant's Registration Statement No. 000-25957 on Form 8-A12G,
together with all amendments thereto, which is incorporated herein by
reference pursuant to Item 3(b) of this Registration Statement.
5 Opinion of Duffy & Sweeney, LLP
23.1 Consent of KPMG LLP, Independent Auditors
23.2 Consent of Duffy & Sweeney, LLP (included in Exhibit 5 to this Registration Statement)
24 Power of Attorney (included on signature page of the Registration Statement)
</TABLE>
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EXHIBIT 5
[Duffy & Sweeney, LLP Letterhead]
October 14, 1999
BiznessOnline.com, Inc.
1720 Route 34
P.O. Box 1347
Wall, New Jersey, 07719
Re: BiznessOnline.com, Inc. (the "Company")
Registration Statement for an aggregate
of 550,000 Shares of Common Stock
Ladies and Gentlemen:
We refer to your registration on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended, of (i) 500,000 shares
of Common Stock available for issuance under the Company's 1999 Stock Incentive
Plan, and (ii) 50,000 shares of Common Stock available for issuance under the
Company's 1999 Non-Employee Director Stock Incentive Plan. We advise you that,
in our opinion, when such shares have been issued and sold pursuant to the
applicable provisions of the 1999 Stock Incentive Plan and the 1999 Non-Employee
Director Stock Incentive Plan in accordance with the Registration Statement,
such shares will be validly issued, fully paid and nonassessable shares of the
Company's Common Stock.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
Duffy & Sweeney, LLP
By: /s/ Michael F. Sweeney
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Michael F. Sweeney, Esq., Partner
<PAGE>
Exhibit 23.1
The Board of Directors
BiznessOnline.com, Inc.:
We consent to the incorporation by reference in this registration statement
on Form S-8 of our reports which appear in the Registration Statement on Form
SB-2 (No. 333-73067) of BiznessOnline.com, Inc.
/s/ KPMG LLP
Providence, Rhode Island
October 13, 1999
