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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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PFSWEB, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 75-2837058
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
500 NORTH CENTRAL EXPRESSWAY, PLANO, TEXAS 75074
(Address of principal executive offices) (Zip Code)
1. NON-EMPLOYEE DIRECTOR STOCK OPTION AND RETAINER PLAN
2. 1999 STOCK OPTION PLAN
3. NON-EMPLOYEE DIRECTOR STOCK OPTION AGREEMENT
(Full title of the plans)
MARK C. LAYTON
PFSWEB, INC.
500 NORTH CENTRAL EXPRESSWAY
PLANO, TEXAS 75074
(Name and address of agent for service)
(972) 881-2900
(Telephone number, including area code of agent for service)
copy to:
MORRIS BIENENFELD, ESQ.
WOLFF & SAMSON
5 BECKER FARM ROAD
ROSELAND, NJ 07068
(973) 533-6532
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) Per Share(2) Price(2) Fee
---------- ------------- ------------ --------- ------------
<S> <C> <C> <C> <C>
Common Stock, 6,035,000(3) $7.73 $46,640,927.50 $12,313.20
par value $.001
per share
</TABLE>
------------------
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement also covers such
additional shares as may hereafter be offered or issued to prevent
dilution resulting from stock splits, stock dividends or similar
transactions.
(2) The aggregate offering price and the registration fee have been
computed pursuant to Rules 457(c) and 457(h)(1) under the Securities
Act upon the basis of (i) an aggregate option exercise price of
$14,972,725 in respect of 1,384,750 shares to be issued upon the
exercise of outstanding options issued under the Plans (as hereinafter
defined) and (ii) $6.81 per share, being the average of high and low
prices of Common Stock reported on the Nasdaq National Market on June
20, 2000 in respect of the remaining 4,650,250 shares registered
hereunder. In accordance with Rule 457(h)(3), no additional filing fee
is payable in respect of the resale of the shares to be issued upon the
exercise of options issued, and to be issued, under the Plans.
(3) Includes (i) 5,750,000 shares to be issued pursuant to the 1999 Stock
Option Plan of PFSweb, Inc. (the "1999 Plan"), (ii) 250,000 shares to
be issued pursuant to the PFSweb, Inc. Non-Employee Director Stock
Option And Retainer Plan (the "Outside Director Plan") and (iii) 35,000
shares to be issued to an outside director upon exercise of an
outstanding stock option under a stock option agreement(the "Director
Option" and together with the 1999 Plan and the Outside Director Plan,
the "Plans").
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PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
1. The Company's prospectus dated December 2, 1999 as filed with the
Commission (File No. 333-87657) pursuant to Rule 424(b) under the Securities
Act.
2. The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended December 31, 1999.
3. All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since March 31, 1999.
4. The description of the Company's common stock, par value $.001 per
share, contained in the Company's Registration Statement on Form 8-A dated
November 24, 1999 as filed with the Commission (File No. 000-28275).
All documents filed by the Company after the date hereof pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), 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 incorporated by reference
herein 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.
Not applicable
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is organized under the laws of the State of Delaware. The
Delaware General Corporation Law, as amended (the "Act"), provides that a
Delaware corporation has the power generally to indemnify its directors,
officers, employees and other agents (each, a "Corporate Agent") against
expenses and liabilities (including amounts paid in settlement) in connection
with any
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proceeding involving such person by reason of his being a Corporate Agent, other
than a proceeding by or in the right of the corporation, if such person acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation and, with respect to any criminal proceeding,
such person had no reasonable cause to believe his conduct was unlawful. In the
case of an action brought by or in the right of the corporation, indemnification
of a Corporate Agent against expenses is permitted if such person acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, however, no indemnification is permitted in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation, unless and only to the extent that the
Court of Chancery or the court in which such proceeding was brought shall
determine upon application that despite the adjudication of liability, but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to such indemnification. To the extent that a Corporate Agent has been
successful on the merits of such proceeding, whether or not by or in the right
of the corporation, or in the defense of any claim, issue or matter therein, the
corporation is required to indemnify the Corporate Agent for expenses in
connection therewith. Expenses incurred by a Corporate Agent in connection with
a proceeding may, under certain circumstances, be paid by the corporation in
advance of the final disposition of the proceeding as authorized by the board of
directors. The power to indemnify and advance expenses under the Act does not
exclude other rights to which a Corporate Agent may be entitled to under the
certificate of incorporation, bylaws, agreement, vote of stockholders or
disinterested directors or otherwise.
Under the Act, a Delaware corporation has the power to purchase and
maintain insurance on behalf of any Corporate Agent against any liabilities
asserted against and incurred by him in such capacity, whether or not the
corporation has the power to indemnify him against such liabilities under the
Act.
As permitted by the Act, the Company's Certificate of Incorporation
contains provisions which limit the personal liability of directors for monetary
damages for breach of fiduciary duties as directors except to the extent such
limitation of liability is prohibited by the Act. In accordance with the Act,
these provisions do not limit the liability of any director for any breach of
the director's duty of loyalty to the Company or its stockholders; for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, for certain unlawful payments of dividends or stock
repurchases under Section 174 of the Act; or for any transaction from which the
director derives an improper personal benefit. These provisions do not limit the
rights of the Company or any stockholder to seek an
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injunction or any other non-monetary relief in the event of a breach of a
director's fiduciary duty. In addition, these provisions apply only to claims
against a director arising out of his role as a director and do not relieve a
director from liability for violations of statutory law, such as certain
liabilities imposed on a director under the federal securities laws.
In addition, the Company's Certificate of Incorporation and By-laws
provide for the indemnification of Corporate Agents for certain expenses,
judgments, fines and payments incurred by them in connection with the defense or
settlement of claims asserted against them in their capacities as Corporate
Agents to the fullest extent authorized by the Act. The Company seeks to limit
its exposure to liability for indemnification of directors and officers by
purchasing directors and officers liability insurance coverage.
Reference is made to Sections 102(b)(7) and 145 of the Act in
connection with the above summary of indemnification, insurance and limitation
of liability.
The purpose of these provisions is to assist the Company in retaining
qualified individuals to serve as officers, directors or other Corporate Agents
of the Company by limiting their exposure to personal liability for serving as
such.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following are filed as exhibits to this registration statement.
Exhibit Description
5 Opinion of Wolff & Samson, Counsel to the Company
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Wolff & Samson (included in Exhibit No. 5)
24 Power of Attorney (included on the signature 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
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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, 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 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
Exchange Act (and, where applicable, each filing of any employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this registration statement relating to the
securities offered therein, and the offering of such securities at the 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 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.
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SIGNATURES
THE REGISTRANT
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 the City of Plano, State of Texas on June 23, 2000.
PFSWEB, INC.
By: /s/ Thomas J. Madden
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Thomas J. Madden, Vice President-Finance
Each person whose signature to this Registration Statement appears
below hereby appoints Thomas J. Madden and Harvey Achatz, or either of them, as
his attorney-in-fact to sign on his behalf individually and in the capacity
stated below and to file all amendments and post-effective amendments to this
Registration Statement, and any and all instruments or documents filed as a part
of or in connection with this Registration Statement or the amendments thereto,
and the attorney-in-fact, or either of them, may make such changes and additions
to this Registration Statement as the attorney-in-fact, or either of them, may
deem necessary or appropriate.
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 dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
Chairman of the June 23, 2000
Board, President, and
Chief Executive
Officer (Principal
By: /s/ Mark C. Layton Executive Officer)
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Mark C. Layton
</TABLE>
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<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
By: /s/ Thomas J. Madden Vice President- June 23, 2000
--------------------------- Finance, Chief
Thomas J. Madden Financial Officer and
Chief Accounting
Officer (Principal
Financial Officer and
Principal Accounting
Officer)
By: /s/ Chris Yates Director June 23, 2000
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Chris Yates
By: /s/ James R. Powell Director June 23, 2000
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James R. Powell
By: /s/ Timothy M. Murray Director June 23, 2000
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Timothy M. Murray
By: /s/ James R. Reilly Director June 23, 2000
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James R. Reilly
By: /s/ Peter P.J. Vikanis Director June 23, 2000
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Peter P.J. Vikanis
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<S> <C>
5 Opinion of Wolff & Samson, Counsel to the Company
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Wolff & Samson (included in Exhibit No. 5)
24 Power of Attorney (included on the signature page)
</TABLE>
