<PAGE>
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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U.S. Interactive, Inc.
(Exact Name of Registrant as Specified in its Charter)
Delaware 22-3316696
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
2012 Renaissance Boulevard
King of Prussia, PA 19406
(Address of Principal Executive Offices and Zip Code)
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1998 Performance Incentive Plan of U.S. Interactive, Inc.
Amended and Restated 1998 U.S. Interactive, Inc. Stock Option Plan
Amended and Restated 1997 U.S. Interactive, Inc. Stock Option Plan
Amended and Restated 1996 U.S. Interactive, Inc. Stock Option Plan
(Formerly Digital Evolution, Inc. Stock Option Plan)
(Full Titles of the Plans)
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Lawrence F. Shay, General Counsel
U.S. Interactive, Inc.
2012 Renaissance Boulevard
King of Prussia, PA 19406
(Name and Address of Agent For Service)
(610) 313-9700
(Telephone Number, Including Area Code, of Agent For Service)
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<PAGE>
Copy to:
Merritt A. Cole, Esquire
Susan E. Pendery, Esquire
Dilworth Paxson LLP
3200 Mellon Bank Center
1735 Market Street
Philadelphia, Pennsylvania 19103-7595
(215) 575-7000
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Maximum Proposed Maximum
Title Of Securities Amount To Offering Price Aggregate Offering Amount Of
To Be Registered Be Registered Per Share Price Registration Fee
<S> <C> <C> <C> <C>
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Common Stock, $.001 Par Value 2,786,117 shares $19.625 (1) $54,677,546.12 (1) $15,200.36 (1)
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Common Stock, $.001 Par Value 3,005,922 shares $5.65 (2) $16,983,459.30 (2) $4,721.40 (2)
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Total Fee $19,921.76
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee,
pursuant to Rule 457(c) under the Securities Act of 1933, as amended, on the
basis of the average of the high and low prices for the Common Stock on
September 24, 1999, as reported by the Nasdaq National Market System, for
shares of Common Stock reserved for issuance under stock options or
otherwise to be granted in the future under the above mentioned plans.
(2) Estimated solely for the purpose of calculating the registration fee,
pursuant to Rule 457(h) under the Securities Act of 1933, as amended, on the
basis of the weighted average of the price at which stock options which have
already been granted under the above mentioned plans may be exercised.
<PAGE>
This registration statement relates to a total of 5,792,039 shares of
Common Stock, $.001 Par Value (the "Shares"), reserved for future sale and
issuance under the 1998 Performance Incentive Plan of U.S. Interactive, Inc.
(the "1998 Incentive Plan"), the Amended and Restated 1998 U.S. Interactive,
Inc. Stock Option Plan (the "1998 SOP"), the Amended and Restated 1997 U.S.
Interactive, Inc. Stock Option Plan (the "1997 SOP"), and the Amended and
Restated 1996 U.S. Interactive, Inc. Stock Option Plan (Formerly Digital
Evolution, Inc. Stock Option Plan) (the "1996 SOP") (collectively, the "Plans"),
as follows: (a) a total of 432,750 Shares which are reserved for future sale and
issuance pursuant to options previously granted under the 1998 Incentive Plan;
(b) a total of 2,567,250 Shares which are reserved for future sale and issuance
under the 1998 Incentive Plan; (c) a total of 1,328,513 Shares which are
reserved for future sale and issuance pursuant to options previously granted
under the 1998 SOP; (d) a total of 64,973 Shares which are reserved for future
sale and issuance pursuant to options to be granted in the future under the 1998
SOP; (e) a total of 342,223 Shares which are reserved for future sale and
issuance pursuant to options previously granted under the 1997 SOP; (f) a total
of 153,894 Shares which are reserved for future sale and issuance pursuant to
options to be granted in the future under the 1997 SOP; and (g) a total of
902,436 Shares which are reserved for future sale and issuance pursuant to
options previously granted under the 1996 SOP. Pursuant to Rule 416 under the
Securities Act of 1933, as amended (the "Securities Act"), an indeterminate
amount of additional shares, which may become issuable pursuant to the
anti-dilution provisions of the Plans, are also being registered hereunder.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents previously filed with the Commission by the Company
are incorporated in this Registration Statement by reference:
1. The Company's prospectus (the "Prospectus") filed with the Securities
and Exchange Commission (the "Commission") on August 9, 1999 pursuant
to Rule 424(b) of the Securities Act.
2. All other reports filed by the Company pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since the end of the fiscal year covered by the
Prospectus.
3. The description of the Company's Common Stock contained in the
Registration Statement on Form 8-A filed with the Commission on August
3, 1999 under Section 12(g) of the Exchange Act.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this registration statement and
prior to the termination of the offering of the Common Stock shall be deemed to
be incorporated by reference in this registration statement and to be a part
hereof from the date of filing such documents. Any statement contained 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 a statement contained herein or in any other subsequently
filed document that also is or is deemed to be incorporated by reference herein
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.
<PAGE>
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The law firm of Dilworth Paxson LLP has rendered an opinion regarding the
legality of the Shares registered hereunder. Various partners of Dilworth Paxson
LLP individually owned in the aggregate approximately 80,162 shares of common
stock of the Company as of September 22, 1999.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS
The Company's Amended and Restated Certificate of Incorporation (the
"Certificate of Incorporation") contains certain provisions permitted under the
General Corporation Law of Delaware, as amended ("Delaware GCL") which eliminate
the personal liability of directors for monetary damages for a breach of the
director's fiduciary duty, except for: (i) breach of a director's duty of
loyalty; (ii) acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; (iii) the unlawful payment of
dividends, stock purchase or stock redemption; or (iv) any transaction from
which the director derives any improper personal benefit. Section 145 of the
Delaware GCL authorizes and permits, subject to the conditions and limitations
set forth therein, indemnification of officers, directors and other persons.
Pursuant to this statutory provision, the Certificate of Incorporation contains
provisions, within such limits and subject to such conditions, which provide for
the indemnification of the Company's directors, officers and employees to the
fullest extent permitted by the Delaware GCL. The Company believes that these
provisions will assist the Company in attracting and retaining qualified
individuals to serve as directors, officers and employees. The Company's
directors and officers are also insured against certain liabilities under a
directors and officers liability insurance policy maintained by the Company.
ITEM 8. EXHIBITS
Exhibit Number Description
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5 Opinion of Dilworth Paxson LLP.
23.1 Consent of KPMG LLP.
23.2 Consent of BDO Seidman, LLP.
*23.3 Consent of Dilworth Paxson LLP.
**24 Power of Attorney of certain officers and directors of
the Company.
99.1 1998 Performance Incentive Plan of U.S. Interactive, Inc.
(incorporated by reference to Exhibit 10.1 to the
Registration Statement on Form S-1 (Registration No.
333-78751) (the "S-1 Registration Statement")).
99.2 Amended and Restated 1998 U.S. Interactive, Inc. Stock
Option Plan (incorporated by reference to Exhibit 10.2 to
the S-1 Registration Statement.)
99.3 Amended and Restated 1997 U.S. Interactive, Inc. Stock
Option Plan (incorporated by reference to Exhibit 10.3 to
the S-1 Registration Statement.)
99.4 Amended and Restated 1996 U.S. Interactive, Inc. Stock
Option Plan (Formerly Digital Evolution, Inc. Stock
Option Plan)(incorporated by reference to Exhibit 10.4 to
the S-1 Registration Statement.)
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* Included in Exhibit 5
**Included in the signature page to this Registration Statement
<PAGE>
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 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.
(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 herein, 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
end 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 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.
<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 King of Prussia, State of Pennsylvania, on the 22nd
day of September, 1999.
U.S. INTERACTIVE, INC.
By: /s/ Stephen T. Zarrilli
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Stephen T. Zarrilli
Chief Executive Officer and President
POWER OF ATTORNEY
Each of the undersigned directors of U.S. Interactive, Inc. whose signature
appears below hereby appoints Stephen T. Zarrilli and Philip L. Calamia, jointly
and individually, as attorneys-in-fact for the undersigned with full power of
substitution, to execute in his name and on behalf of such person, individually,
and in each capacity stated below, this Registration Statement on Form S-8 and
one or more amendments (including post-effective amendments) to this
Registration Statement as the attorneys-in-fact shall deem appropriate, and to
file any such amendment (including exhibits thereto and other documents in
connection herewith) to this Registration Statement on Form S-8 with the
Securities and Exchange Commission, granting unto said attorneys-in-fact, and
each of them, 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 to
all intents and purposes as such person might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact, or either of them, 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 by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ Eric Pulier Chairman of the Board of Directors September 22, 1999
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Eric Pulier
/s/ Stephen T. Zarrilli Director, Chief Executive Officer and September 22, 1999
- ------------------------- President (Principal Executive Officer)
Stephen T. Zarrilli
/s/ Philip L. Calamia Vice President and Chief Financial September 22, 1999
- ------------------------- Officer (Principal Financial and
Philip L. Calamia Accounting Officer)
/s/ Robert E. Keith, Jr. Director September 22, 1999
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Robert E. Keith, Jr.
/s/ John D. Shulman Director September 22, 1999
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John D. Shulman
/s/ E. Michael Forgash Director September 22, 1999
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E. Michael Forgash
/s/ William C. Jennings Director September 22, 1999
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William C. Jennings
/s/ John H. Klein Director September 22, 1999
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John H. Klein
</TABLE>
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EXHIBIT INDEX
Exhibit Number Description
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5 Opinion of Dilworth Paxson LLP.
23.1 Consent of KPMG LLP.
23.2 Consent of BDO Seidman, LLP.
*23.3 Consent of Dilworth Paxson LLP.
**24 Power of Attorney of certain officers and directors of
the Company.
99.1 1998 Performance Incentive Plan of U.S. Interactive, Inc.
(incorporated by reference to Exhibit 10.1 to the S-1
Registration Statement.)
99.2 Amended and Restated 1998 U.S. Interactive, Inc. Stock
Option Plan (incorporated by reference to Exhibit 10.2 to
the S-1 Registration Statement.)
99.3 Amended and Restated 1997 U.S. Interactive, Inc. Stock
Option Plan (incorporated by reference to Exhibit 10.3 to
the S-1 Registration Statement.)
99.4 Amended and Restated 1996 U.S. Interactive, Inc. Stock
Option Plan (incorporated by reference to Exhibit 10.4 to
the S-1 Registration Statement.)
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* Included in Exhibit 5
**Included in the signature page to this Registration Statement
<PAGE>
Exhibits 5 and 23.3
[Letterhead of Dilworth Paxson LLP]
DIRECT DIAL NUMBER:
(215) 575-7000
September ___, 1999
U.S. Interactive, Inc.
2012 Renaissance Blvd.
King of Prussia, PA 19406
Re: 1998 Performance Incentive Plan of U.S. Interactive, Inc.
Amended and Restated 1998 U.S. Interactive, Inc. Stock Option Plan
Amended and Restated 1997 U.S. Interactive, Inc. Stock Option Plan
Amended and Restated 1996 U.S. Interactive Inc. Stock Option Plan
Registration Statement on Form S-8
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Ladies and Gentlemen:
As counsel for U.S. Interactive, Inc., a Delaware corporation (the
"Company"), we have been asked to render our opinion with respect to certain
matters relating to the offer and sale of a total of up to 5,792,039 shares of
the Company's Common Stock, par value $.001 per share (the "Shares"), which may
be issued, as follows: (i) pursuant to the 1998 Performance Incentive Plan of
U.S. Interactive, Inc. (the "1998 Incentive Plan") 3,000,000 Shares; (ii)
pursuant to the Amended and Restated 1998 U.S. Interactive, Inc. Stock Option
Plan (the "1998 SOP") 1,393,486 Shares; (iii) pursuant to the Amended and
Restated 1997 U.S. Interactive, Inc. Stock Option Plan (the "1997 SOP") 496,117
Shares; and (iv) pursuant to the Amended and Restated 1996 U.S. Interactive
Stock Option Plan ("1996 SOP") 902,436 Shares (such plans being referred to
collectively as the "Plans"), which are or may become issuable upon exercise of
options granted or which may be granted thereunder or otherwise issuable under
the 1998 Incentive Plan. The number of shares which may be purchased upon
exercise of each option is subject to adjustment from time to time as set forth
in such option or the related Plans.
The Shares are the subject of a Registration Statement on Form S-8 (the
"Registration Statement") which the Company intends to file with the Securities
and Exchange Commission under the Securities Act of 1933, as amended (the
"Act"), on or about September 27, 1999. (Said Registration Statement on Form S-8
is referred to hereinafter as the "Registration Statement.")
<PAGE>
In rendering this opinion, we have examined: (i) the Amended and Restated
Certificate of Incorporation and By-laws of the Company, each as presently in
effect; (ii) the resolutions and related minutes of the Company's Board of
Directors adopting the 1998 Incentive Plan and authorizing the issuance of
3,000,000 Shares pursuant to the 1998 Incentive Plan; (iii) the resolutions and
related minutes of the Company's Board of Directors respectively adopting and
amending the 1998 SOP and authorizing the issuance of 1,054,688 Shares pursuant
to the 1998 SOP; (iv) the resolutions and minutes of the Company's Board of
Directors respectively adopting and amending the 1997 SOP and authorizing the
issuance of 600,000 Shares pursuant to the 1997 SOP; (v) the resolutions and
minutes of the Company's Board of Directors respectively adopting and amending
the 1996 SOP and authorizing the issuance of 1,044,247 Shares pursuant to the
1996 SOP; (vi) the resolutions of the Company's Board of Directors authorizing
the preparation and filing of the Registration Statement; (vii) the Registration
Statement; and (viii) such certificates and other documents as we have deemed
appropriate or necessary as a basis for the opinions hereinafter expressed.
In rendering the opinions expressed below, we have assumed the authenticity
of all documents and records examined, the conformity with the original
documents of all documents submitted to us as copies and the genuineness of all
signatures.
Based upon and subject to the foregoing, we are of the opinion that the
Shares, when duly issued in accordance with the terms of the respective Plans
(including the terms of any options granted thereunder), after the Registration
Statement shall have become effective under the Act, will be legally issued,
fully paid and nonassessable.
We have made such investigation of the General Corporation Law of the State
of Delaware as we have considered appropriate for the purpose of rendering the
opinion expressed above. We are qualified to practice law in the Commonwealth of
Pennsylvania; this opinion is limited to the Federal law of the United States
and the General Corporation Law of the State of Delaware.
We hereby consent to the filing of this opinion as a exhibit to the
Registration Statement and to the reference made to this Firm in Item 5 of Part
II of the Registration Statement.
Very truly yours,
/s/
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DILWORTH PAXSON LLP
cc: Lawrence F. Shay, General Counsel
U.S. Interactive, Inc.
2
<PAGE>
Exhibit 23.1
Consent of Independent Auditors
The Board of Directors
U.S. Interactive, Inc.:
We consent to the use of our report dated May 7, 1999, relating to the
consolidated balance sheets of U.S. Interactive, Inc. and subsidiaries as of
December 31, 1998 and 1997 and the related consolidated statements of
operations, stockholders' equity (deficit) and cash flows for each of the years
in the three-year period ended December 31, 1998, incorporated by reference in
this registration statement on Form S-8, which report is included in the
registration statement on Form S-1 dated August 9, 1999 of U.S. Interactive,
Inc.
/s/ KPMG LLP
Philadelphia, Pennsylvania
September 28, 1999
<PAGE>
Exhibit 23.2
Consent of Independent Certified Public Accountants
To the Board of Directors and Stockholders
Digital Evolution, Inc.
We hereby consent to the use of our report dated August 25, 1998, relating to
the balance sheets of Digital Evolution, Inc. as of December 31, 1997 and 1996
and the related statements of operations, stockholders' equity and cash flows
for each of the two years then ended, incorporated by reference in this
registration statement on Form S-8, which report is included in the registration
statement on Form S-1 dated August 5, 1999 of U.S. Interactive, Inc.
/s/ BDO Seidman, LLP
Los Angeles, California
September 28, 1999
