<PAGE>
As filed with the Securities and Exchange Commission on December 10, 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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EL SITIO, INC.
(Exact Name of Registrant as Specified in Its Charter)
BRITISH VIRGIN ISLANDS NOT APPLICABLE
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
EL SITIO, INC.
AVENIDA BELGRANO 845
1092 BUENOS AIRES, ARGENTINA
EL SITIO, INC. 1999 STOCK OPTION PLAN
(Full title of the plan)
CT CORPORATION SYSTEM
1633 BROADWAY
NEW YORK, NY 10019
(212) 664-1666
(Name and address of agent for service)
(212) 664-1666
(Telephone number, including area code, of agent for service)
COPIES TO:
NEIL A. TORPEY, ESQ.
PAUL, HASTINGS, JANOFSKY & WALKER LLP
399 PARK AVENUE
NEW YORK, NEW YORK 10022
TELEPHONE: (212) 318-6000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
AMOUNT TO BE OFFERING AGGREGATE REGISTRATION FEE
TITLE OF SECURITIES TO BE REGISTERED REGISTERED (1) PRICE PER SHARE (2) OFFERING PRICE (2) (2)
=====================================================================================================================
<S> <C> <C> <C> <C>
Common Shares, par value $0.01 3,240,000 $16.00 $51,840,000 $13,686
=====================================================================================================================
</TABLE>
(1) The number of common shares, par value $0.01 per share (the "Common
Shares"), stated above consists of the aggregate number of shares which
may be issued under the El Sitio, Inc. 1999 Stock Option Plan (the
"Plan"). The maximum number of shares which may be issued under the Plan
are subject to adjustment in accordance with certain anti-dilution and
other provisions of the Plan. Accordingly, pursuant to Rule 416 under the
Securities Act of 1933, as amended, this registration statement includes,
in addition to the number of shares stated above, an indeterminate number
of shares which may be subject to grant or otherwise issuable after the
operation of any such anti-dilution and other provisions.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h) under the Securities Act of 1933 as amended,
based on $16.00, the initial public offering price of the Common Shares
of the registrant.
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<PAGE>
PART I
INFORMATION REQUIRED IN THIS SECTION 10(a) PROSPECTUS
Documents containing the information specified in Part I of this
registration statement have been sent or given to participants in the Plan as
specified by Rule 428(b)(l) of the Securities Act of 1933, as amended (the
"Securities Act"). Such documents are not required to be and are not filed with
the Securities and Exchange Commission (the "Commission") either as part of this
registration statement or as a prospectus or prospectus supplement pursuant to
Rule 424. These documents and the documents incorporated by reference in this
registration statement pursuant to Item 3 of Part II of this Form S-8, 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.
The following information filed with the Commission is incorporated
herein by reference:
1. The registrant's Form 8-A filed on December 3, 1999,
pursuant to Section 12(g) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"); and
2. The description of the Common Shares of the registrant
contained in the registrant's registration statement on Form F-1, as
amended (Registration No. 333-91263), originally filed with the
Commission on November 19, 1999, and declared effective (as amended) on
December 9, 1999.
In addition, all documents filed by the registrant with the Commission
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 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 into this registration statement and to be a part
hereof from the date of filing of such documents with the Commission. Any
statement contained in a document 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 which 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.
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 International Business Companies Act, 1984 of the British Virgin
Islands permits an international business company to indemnify directors and
officers and permits an international business company to acquire liability
insurance for directors and officers.
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Under Sections 118 through 123 of our articles of association, the
registrant is empowered to indemnify its directors and officers as follows:
"118. Subject to the limitations hereinafter provided, the
Company may indemnify against all expenses, including legal fees, and
against all judgments, fines and amounts paid in settlement and
reasonably incurred in connection with legal, administrative or
investigative proceedings any Person who
(a) is or was a party or is threatened to be made a
party to any threatened, pending or completed proceedings,
whether civil, criminal, administrative or investigative, by
reason of the fact that the Person is or was a director, an
officer on a liquidator of the Company; or
(b) is or was, at the request of the Company, serving
as a director, officer or liquidator of or in any other
capacity is or was acting for, another company or a
partnership, joint venture, trust or other enterprise.
119. The Company shall only indemnify a Person if the person
acted honestly and in good faith with a view to the best interests of
the Company and, in the case of criminal proceedings, the Person had no
reasonable cause to believe that his conduct was unlawful.
120. The decision of the directors as to whether the Person
acted honestly and in good faith and with a view to the best interests
of the Company and as to whether the Person had no reasonable cause to
believe that his conduct was unlawful is, in the absence of fraud,
sufficient for the purposes of these Articles, unless a question of law
is involved.
121. The termination of any proceedings by any judgment,
order, settlement, conviction or the entering of a nolle prosequi does
not, by itself, create a presumption that the Person did not act
honestly and in good faith and with a view to the best interests of the
Company or that the Person had reasonable cause to believe that his
conduct was unlawful.
122. If a Person to be indemnified has been successful in
defence of any proceedings referred to above, the Person is entitled to
be indemnified against all expenses, including legal fees, and against
all judgments, fines and amounts paid in settlement and reasonably
incurred by the Person in connection with the proceedings.
123. The Company may purchase and maintain insurance in
relation to any Person who is or was a director, an officer or a
liquidator of the Company, or who at the request of the Company is or
was serving as a director, an officer or a liquidator of, or in any
other capacity is or was acting for, another company or a partnership,
joint venture, trust or other enterprise, against any liability
asserted against the Person and incurred by the person in that
capacity, whether or not the Company has or would have had the power to
indemnify the Person against the liability as provided in these
Articles."
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits filed as part of this registration statement are as
follows:
II-2
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<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<S> <C>
3.3 Amended and Restated Memorandum of Association of the registrant(*)
3.4 Amended and Restated Articles of Association of the registrant(*)
4.1 Form of Common Shares Certificate(*)
5.1 Opinion of Conyers Dill & Pearman
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Deloitte & Touche, Argentina
23.3 Consent of Deloitte Touche Thomatsu, Brazil
23.4 Consent of Deloitte & Touche, Columbia
23.5 Consent of Deloitte & Touche LLP
23.6 Consent of Conyers Dill & Pearman (included in Exhibit 5.1)
24.1 Power of Attorney (included on the Signature Page)
</TABLE>
------------------------
(*) Incorporated by reference to the registrant's registration
statement on Form F-1, as amended (Registration No. 333-91263),
originally filed with the Commission on November 19, 1999, and
declared effective (as amended) on December 9, 1999.
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
A. (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;
(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 or furnished to the Commission
by
II-3
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the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in this 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 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
termination of the offering.
(4) To file a post-effective amendment to this registration
statement to include any financial statements required by Rule 3-19 of
Regulation S-X at the start of any delayed offering or throughout a continuous
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
Exchange Act (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 Commission such
indemnification is against public policy as expressed in the Securities Act of
1933, 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 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 of 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.
II-4
<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 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 December 9,
1999.
EL SITIO, INC.
By: /s/ Horacio Milberg
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Horacio Milberg
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Horacio Milberg and Roberto
Cibrian-Campoy, with full power to act without the other, and each of them, as
such person's true and lawful attorney- or attorneys-in-fact and agent or
agents, with full power of substitution and resubstitution, for such person and
in such person's name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to the registration
statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission and any
other regulatory authority, 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 in connection therewith, as fully to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their
or such person's substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
* Chief Executive Officer and Director December 9, 1999
- ----------------------------------------- (Principal Executive Officer)
Roberto Cibrian-Campoy
/s/ Horacio Milberg Chief Financial Officer (Principal Financial December 9, 1999
- ----------------------------------------- Officer)
Horacio Milberg
* Chief Administrative Officer, Controller and December 9, 1999
- ----------------------------------------- Treasurer (Principal Accounting Officer)
Alfredo Jimenez de Arechaga
* Chairman of the Board of Directors December 9, 1999
- -----------------------------------------
Roberto Vivo-Chaneton
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
* Director December 9, 1999
- -----------------------------------------
Guillermo Liberman
* Director December 9, 1999
- -----------------------------------------
Ricardo Verdaguer
* Director December 9, 1999
- -----------------------------------------
Michael Greeley
* Director December 9, 1999
- -----------------------------------------
Michael Levitt
* Director December 9, 1999
- -----------------------------------------
Carlos Cisneros
* Director December 9, 1999
- -----------------------------------------
Sofia Pescarmona
*By /s/ Horacio Milberg
- -----------------------------------------
Horacio Milberg
Attorney-in-Fact
</TABLE>
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<PAGE>
SIGNATURE OF AUTHORIZED REPRESENTATIVE
Pursuant to the Securities Act of 1933, as amended, the undersigned,
the duly authorized representative in the United States of El Sitio, Inc., has
signed this Registration Statement on Form S-8 in Miami, Florida on December 8,
1999.
/s/ Paola Prado
-------------------------
Paola Prado
AUTHORIZED REPRESENTATIVE
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<S> <C>
3.3 Amended and Restated Memorandum of Association of the registrant(*)
3.4 Amended and Restated Articles of Association of the registrant(*)
4.1 Form of Common Shares Certificate(*)
5.1 Opinion of Conyers Dill & Pearman
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Deloitte & Touche, Argentina
23.3 Consent of Deloitte Touche Thomatsu, Brazil
23.4 Consent of Deloitte & Touche, Columbia
23.5 Consent of Deloitte & Touche LLP
23.6 Consent of Conyers Dill & Pearman (included in Exhibit 5.1)
24.1 Power of Attorney (included on the Signature Page)
</TABLE>
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(*) Incorporated by reference to the registrant's registration
statement on Form F-1, as amended (Registration No. 333-91263),
originally filed with the Commission on November 19, 1999, and
declared effective (as amended) on December 9, 1999.
<PAGE>
EXHIBIT 5.1
December 10, 1999
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Gentlemen:
We have been requested by El Sito, Inc. (the "Company"), a British
Virgin Islands company, to furnish our opinion in connection with the
registration statement (the "Registration Statement") on Form S-8, with respect
to the registration of 3,240,000 shares (the "Shares") of the Company's common
shares, par value $0.01 per share, that may be sold upon the exercise of share
options issued or to be issued pursuant to the Company's 1999 Stock Option Plan.
We have made such examination as we have deemed necessary for the
purpose of this opinion. Based upon such examination, it is our opinion that,
when the Shares have been sold, issued and paid for in the manner described in
the 1999 Stock Option Plan, the Shares will be validly issued, fully paid and
non-assessable (meaning that no further sums will be payable to the Company on
the Shares).
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Yours faithfully,
CONYERS DILL & PEARMAN
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of El Sitio, Inc. on Form S-8 of our report dated October 22, 1999 (October
28, 1999 as to the effects of the share split described in Note 3 and
November 5, 1999 as to the last sentence in the second paragraph in Note 14)
appearing in the Prospectus, which is part of such Registration Statement,
and to the reference to us under the heading "Experts" in such Prospectus.
/s/ Deloitte & Touche
DELOITTE & TOUCHE LLP
Certified Public Accountants
Miami, Florida
December 10, 1999
<PAGE>
EXHIBIT 23.2
DELOITTE & TOUCHE
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of El Sitio, Inc. on Form S-8 of our report dated November 5, 1999 (relating
to the statements of net revenues and direct costs and expenses of IMPSAT
S.A., Argentina's retail dial-up access business presented separately herein)
appearing in the Prospectus, which is part of such Registration Statement,
and to the reference to us under the heading "Experts" in such Prospectus.
/s/ Deloitte & Touche
DELOITTE & TOUCHE
Buenos Aires, Argentina
December 10, 1999
<PAGE>
EXHIBIT 23.3
DELOITTE TOUCHE TOHMATSU
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of El Sitio, Inc. on Form S-8 of our report dated November 5, 1999 (relating
to the statements of net revenues and direct costs and expenses of MANDIC
INTERNET LTDA's retail dial-up access business presented separately
herein) appearing in the Prospectus, which is part of such Registration
Statement, and to the reference to us under the heading "Experts" in such
Prospectus.
/s/ Deloitte Touche Tohmatsu
DELOITTE TOUCHE TOHMATSU
Sao Paulo, Brazil
December 10, 1999
<PAGE>
EXHIBIT 23.4
DELOITTE & TOUCHE
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of El Sitio, Inc. on Form S-8 of our report dated November 4, 1999 (relating
to the statements of net revenues and direct costs and expenses of IMPSAT
S.A., Colombia's retail dial-up access business presented separately
herein) appearing in the Prospectus, which is part of this Registration
Statement, and to the reference to us under the heading "Experts" in such
Prospectus.
/s/ Deloitte & Touche
December 10, 1999
<PAGE>
EXHIBIT 23.5
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of El Sitio, Inc. on Form S-8 of our report dated October 28, 1999 (November
5, 1999 as to the second sentence in Note 3) relating to statement of
historical net assets to be sold by IMPSAT Corporation presented separately
herein, appearing in the Prospectus, which is part of such Registration
Statement, and to the reference to us under the heading "Experts" in such
Prospectus.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Certified Public Accountants
Miami, Florida
December 10, 1999
