As filed with the Securities and Exchange Commission
on December 22, 1999.
Registration No. 333-__________
=================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_________________________
ASD SYSTEMS, INC.
(Exact name of Registrant as specified in its charter)
Texas 75-2737041
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification No.)
organization)
3737 Grader Street, Suite 110 75041
Garland, Texas (Zip Code)
(Address of Principal
Executive Offices)
_________________________
1999 LONG-TERM INCENTIVE PLAN
STOCK OPTION AGREEMENT FOR PAUL M. JENNINGS
(Full title of the plan(s))
_________________________
Norm Charney Copy to:
Chief Executive Officer J. David Washburn, Esq.
ASD SYSTEMS, INC. ARTER & HADDEN LLP
3737 Grader Street, Suite 110 1717 Main Street, Suite 4100
Garland, Texas 75041 Dallas, Texas 75201-4605
(Name and address of (214) 761-2100
agent for service)
(214) 348-7200
(Telephone number,
including area code,
of agent for service)
_________________________
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
-------------------------------
<S> <C> <C> <C> <C>
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered Per Share Offering Price Registration Fee
- -------------------- -------------------- ---------------- ---------------- -----------------
Common Stock
$.0001 par value 1,200,000 shares(1) (2) $9,244,150(2) $2,440.46
Common Stock
$.0001 par value 957,500 shares (3) $1.00(4) $ 957,500 $ 252.78
-------------------- ---------------- --------------- -----------------
TOTAL 2,157,500 shares(5) $10,201,650 $2,693.24
</TABLE>
(1) The securities to be registered represent shares of
Common Stock reserved for issuance under the 1999 Long-Term
Incentive Plan of ASD Systems, Inc. (the "Plan").
(2) Estimated pursuant to Rule 457(h) solely for the
purpose of calculating the registration fee as follows: (i) the
maximum proposed offering price at which outstanding options
under the Plan (779,500 shares of Common Stock) may be exercised
is $2,936,650 and (ii) the maximum proposed offering price at
which unissued options may be exercised under the Plan (420,500
shares of Common Stock) is $6,307,500 calculated on the basis of
the closing sale price per share of Common Stock on the Nasdaq
Stock Market's National Market on December 20, 1999 ($15.00), in
accordance with Rule 457(c).
(3) The securities to be registered represent shares of
Common Stock reserved for issuance under that Stock Option
Agreement dated February 10, 1999 by and between Paul M. Jennings
and ASD Systems, Inc. (the "Jennings Option").
(4) Calculated pursuant to Rule 457(h).
(5) Pursuant to Rule 416, shares of Common Stock of the
Company issuable pursuant to (i) the exercise of options granted
or to be granted under the Plan or (ii) the exercise of the
Jennings Option, in order to prevent dilution resulting from any
future stock split, stock divided or similar transaction, are
also being registered hereunder.
=================================================================
<PAGE>
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2.Registrant Information and Employee Plan Annual
Information.*
* Information required by Part I to be contained in the Section
10(a) Prospectus is omitted from the Registration Statement in
accordance with Rule 428 under the Securities Act of 1933, as
amended (the "Securities Act"), and the Note to Part I of Form
S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.Incorporation of Documents by Reference.
ASD Systems, Inc. (the "Company") hereby incorporates by
reference in this Registration Statement the following documents
previously filed or to be filed with the Securities and Exchange
Commission (the "Commission"):
(a) the Company's prospectus filed with the Commission
pursuant to Rule 424(b) on November 12, 1999 as it
relates to the Company's Registration Statement on Form
S-1, Registration Statement No. 333-85983;
(b) the description of the Company's common stock, par
value $.0001 per share (the "Common Stock"), contained
in the Company's Registration Statement on Form 8-A
(file no. 0-27945), including any amendment or report
filed for the purpose of updating such description; and
(c) all documents filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended, subsequent
to the date of this Registration Statement shall be
deemed to be incorporated herein by reference and to be
a part hereof from the date of filing of such documents
until such time as there shall have been filed a post-
effective amendment that indicates that all securities
offered under the Registration Statement have been sold
or that deregisters all securities remaining unsold at
the time of the amendment.
Any statement contained herein or in a document incorporated
or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Registration
Statement to the extent that the statement contained herein or in
any subsequently filed document that also is or is deemed to be
incorporated by reference herein, or in any document forming any
part of the Section 10(a) Prospectus to be delivered to
participants
-2-
<PAGE>
in connection with, modifies or supersedes such statement. 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.
The Company has authority under Articles 2.02A.(16) and
2.02-1 of the Texas Business Corporation Act to indemnify its
directors and officers to the extent provided for in such
statute. The Company's amended and restated articles of
incorporation permit indemnification of directors and officers to
the fullest extent permitted by law.
The Texas Business Corporation Act provides, in part, that a
corporation may indemnify a director or officer or other person
who was, is, or is threatened to be made a named defendant or
respondent in a proceeding because the person is or was a
director, officer, employee or agent of the corporation, if it is
determined that such person:
* conducted himself in good faith;
* reasonably believed, in the case of conduct in his
official capacity as a director or officer of the
corporation, that his conduct was in the corporation's
best interests, and, in all other cases, that his
conduct was at least not opposed to the corporation's
best interests; and
* in the case of any criminal proceeding, had no
reasonable cause to believe that his conduct was
unlawful.
A corporation may indemnify a person under the Texas
Business Corporation Act against judgments, penalties, including
excise and similar taxes, fines, settlement, and reasonable
expenses actually incurred by the person in connection with the
proceeding. If the person is found liable to the corporation or
is found liable on the basis that personal benefit was improperly
received by the person, the indemnification is limited to
reasonable expenses actually incurred by the person in connection
with the proceeding, and shall not be made in respect of any
proceeding in which the person shall have been found liable for
willful or intentional misconduct in the performance of his duty
to the corporation.
A corporation may also pay or reimburse expenses incurred by
a person in connection with his appearance as a witness or other
participation in a proceeding at a time when he is not a named
defendant or respondent in the proceeding.
-3-
<PAGE>
Article Twelve of the Company's amended and restated
articles of incorporation provides that, to the fullest extent
permitted by the Texas Business Corporation Act as the same
exists or as it may hereafter be amended, no director of the
Company shall be personally liable to the Company or its
shareholders for monetary damages for breach of fiduciary duty as
a director.
We have entered into indemnification agreements with each of
our directors that provide for indemnification and expense
advancement to the fullest extent permitted under the Texas
Business Corporation Act.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
(a) Exhibits.
Exhibit Description
------- ----------------------------------------
4.1 1999 Long-Term Incentive Plan for ASD
Systems, Inc. (the "Plan") (filed as
Exhibit 4.2 to the Registrant's
Registration Statement on Form S-1 (Reg.
Stmt. No. 333-85983) declared effective
November 10, 1999 (the "S-1"))
4.2 Form of Stock Option Agreements relating
to options granted under the Plan (filed
as Exhibit 4.3 to the S-1)
4.3 Stock Option Agreement dated as of
February 10, 1999 between the Registrant
and Paul M. Jennings (filed as
Exhibit 10.11 to the S-1)
5.1 Opinion of Arter & Hadden LLP (filed
herewith)
23.1 Consent of Arter & Hadden LLP (included
in their opinion filed as Exhibit 5.1)
(filed herewith)
23.2 Consent of Ernst & Young LLP (filed
herewith)
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;
(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
-4-
<PAGE>
registration statement; provided, however, that clauses (i)
and (ii) do not apply if the information required to be
included in a post-effective amendment by those clauses is
contained in periodic reports filed by the Registrant
pursuant to Section 13 or 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 Section 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.
[Signature Page Follows]
-5-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
as amended, 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 Garland, Texas, on December 20, 1999.
ASD SYSTEMS, INC.
By: /s/ DAVID E. BOWE
------------------------------
David E. Bowe
Executive Vice President
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933,
as amended, this Registration Statement has been signed by the
following persons and in the capacities indicated on December 20,
1999.
Signature Title
- ----------------------- --------------------------------
/s/ NORMAN CHARNEY Chairman of the Board, Chief Executive
- ----------------------- Officer and President (Principal
Norman Charney Executive Officer)
/s/ PAUL M. JENNINGS Chief Technology Officer and Director
- -----------------------
Paul M. Jennings
/s/ DAVID E. BOWE Executive Vice President
- ----------------------- and Chief Financial Officer
David E. Bowe (Principal Financial and Accounting
Officer)
/s/ JONATHAN R. BLOCH Director
- -----------------------
Jonathan R. Bloch
Director
- -----------------------
Alan E. Salzman
/s/ PAUL G. SHERER Director
- -----------------------
Paul G. Sherer
Director
- -----------------------
Kevin P. Yancy
-6-
<PAGE>
EXHIBIT INDEX
-------------
Exhibit Description
-------- -------------------------------------------
4.1 1999 Long-Term Incentive Plan for ASD Systems,
Inc. (the "Plan") (filed as Exhibit 4.2 to the
Registrant's Registration Statement on Form S-1
(Reg. Stmt. No. 333-85983) declared effective
November 10, 1999 (the "S-1"))
4.2 Form of Stock Option Agreements relating to
options granted under the Plan (filed as Exhibit
4.3 to the S-1)
4.3 Stock Option Agreement dated as of February 10,
1999 between the Registrant and Paul M. Jennings
(filed as Exhibit 10.11 to the S-1)
5.1 Opinion of Arter & Hadden LLP (filed herewith)
23.1 Consent of Arter & Hadden LLP (included in their
opinion filed as Exhibit 5.1) (filed herewith)
23.2 Consent of Ernst & Young LLP (filed herewith)
-7-
EXHIBIT 5.1
ARTER & HADDEN LLP
1717 Main Street, Suite 4100
Dallas, Texas 75201
Tel: 214.761.2100
Fax: 214.741.7139
December 22, 1999
Board of Directors
ASD Systems, Inc.
3737 Grader Street, Suite 110
Garland, Texas 75041
Re: ASD Systems, Inc.
Registration Statement on Form S-8
1999 Long-Term Incentive Plan
Stock Option Agreement for Paul M. Jennings
Gentlemen:
We have acted as counsel to ASD Systems, Inc., a Texas
corporation (the "Company"), in connection with the preparation
and filing of a Registration Statement on Form S-8 (the
"Registration Statement") to be filed with the Securities and
Exchange Commission on or about December 22, 1999, under the
Securities Act of 1933, as amended (the "Securities Act"),
relating to (A) 1,200,000 shares of the $0.0001 par value common
stock (the "Common Stock") of the Company that will be issued on
the exercise of stock options (collectively, the "Options")
granted or that may be granted under the 1999 Long-Term Incentive
Plan of ASD Systems, Inc. (the "Plan") and (B) 957,500 shares of
the Common Stock of the Company that will be issued on the
exercise of a stock option granted to Paul M. Jennings (the
"Jennings Option"), an employee of the Company.
You have requested the opinion of this firm with respect to
certain legal aspects of the Registration Statement. In
connection therewith, we have examined and relied upon the
original, or copies identified to our satisfaction, of (1) the
Articles of Incorporation and the Bylaws of the Company, as both
have been amended and restated; (2) minutes and records of the
corporate proceedings of the Company with respect to the
establishment and approval of the Plan, the granting of the
Options under the Plan, the issuance of shares of Common Stock
<PAGE>
ASD Systems, Inc.
December 22, 1999
Page 2
pursuant to the Plan and related matters; (3) minutes and records
of the corporate proceedings of the Company with respect to the
approval of the Jennings Option and related matters; (4) the
Registration Statement and exhibits thereto, including the Plan,
the form of stock option agreements under the Plan and the
Jennings Option, each listed as exhibits to the Registration
Statement; and (5) such other documents and instruments as we
have deemed necessary for the expression of the opinions herein
contained. In making the foregoing examinations, we have assumed
the genuineness of all signatures and the authenticity of all
documents submitted to us as originals, and the conformity to
original documents of all documents submitted to us as certified
or photostatic copies. As to various questions of fact material
to this opinion, and as to the content and form of the Articles
of Incorporation, the Bylaws, minutes, records, resolutions and
other documents or writings of the Company, we have relied, to
the extent we deem reasonably appropriate, upon representations
or certificates of officers or directors of the Company and upon
documents, records and instruments furnished to us by the
Company, without independent check or verification of their
accuracy.
Based upon our examination, consideration of, and reliance
on the documents and other matters described above, and subject
to the comments and exceptions noted below, we are of the opinion
that, assuming (i) the outstanding Options were duly granted and
the Options to be granted in the future will be duly granted in
accordance with the terms of the Plan, (ii) the Company maintains
an adequate number of authorized but unissued shares and/or
treasury shares of Common Stock available for issuance to those
persons who exercise Options granted under the Plan and to Paul
M. Jennings upon exercise of the Jennings Option, (iii) the
exercise of Options and the Jennings Option are in accordance
with the provisions thereof and, with respect to the Options, in
accordance with the provisions of the Plan, and (iv) the
consideration for the shares of Common Stock issuable upon the
exercise of the Options and the Jennings Option is actually
received by the Company as provided in the particular Option or
Jennings Option, as the case may be (and, with respect to the
Options, in accordance with the terms of the Plan), and such
consideration exceeds the par value of such shares, then the
shares of Common Stock issued pursuant to the exercise of the
Options or the Jennings Option, as the case may be, will be
validly issued, fully paid and nonassessable.
<PAGE>
ASD Systems, Inc.
December 22, 1999
Page 3
We bring to your attention the fact that this legal opinion
is an expression of professional judgment and not a guaranty of
result. This opinion is rendered as of the date hereof, and we
undertake no, and hereby disclaim any, obligation to advise you
of any changes in or new developments that might affect any
matters or opinions set forth herein.
This opinion is limited in all respects to the Texas
Business Corporation Act as in effect on the date hereof.
We hereby consent to the filing of this opinion as
Exhibit 5.1 to the Registration Statement and to references to
our firm included in or made a part of the Registration
Statement. In giving this consent, we do not admit that we come
within the category of person whose consent is required under
Section 7 of the Securities Act or the Rules and Regulations of
the Securities and Exchange Commission thereunder. This opinion
may not be relied upon by any person other than the addressee
identified above.
Respectfully submitted,
ARTER & HADDEN LLP
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement (Form S-8 No. 333-____________) pertaining to the 1999
Long-Term Incentive Plan/Stock Option Agreement For Paul M.
Jennings of our report dated August 5, 1999 (except for Note 11,
as to which the date is August 23, 1999) with respect to the
financial statements of ASD Systems, Inc. for the year ended
December 31, 1998, the financial statements of ASD Partners, Ltd.
for the period October 14, 1997 to December 31, 1997, and to the
use of our reports dated August 5, 1999 with respect to the
financial statements of the Fulfillment Division of Athletic
Supply of Dallas, LLC for the period December 21, 1996 to
October 13, 1997 and the financial statements of the Fulfillment
Division of Athletic Supply of Dallas, Inc. for the period
January 1, 1996 to December 20, 1996, appearing in the
Registration Statement (Form S-1 No. 333-85983) filed with the
Securities and Exchange Commission pursuant to the Securities Act
of 1933.
/s/ ERNST & YOUNG LLP
Dallas, Texas
December 21, 1999
