SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
INDEXONLY TECHNOLOGIES, INC.
(Exact Name of Registrant as Specified in its Charter)
Nevada 98-0223452
(State or Other Jurisdiction of (IRS Employer Identification
Incorporation or Organization Number)
3823 Henning Drive, Suite 217
Burnaby, British Columbia V5C 6P3 CANADA
(604) 419-4401
(Address and Telephone Number of Principal Executive Offices)
Indexonly Technologies, Inc.
1999 Stock Option Plan
(Full Title of the Plan)
(name, address and telephone number
of agent for service) (with copies to)
Cliff Sweeney Shea Wilson, Esq.
Chief Executive Officer Ogden Murphy Wallace P.L.L.C.
Indexonly Technologies, Inc. Attorneys at Law
3833 Henning Drive, Suite 217 1601 Fifth Avenue, Suite 2100
Burnaby, British Columbia V5C 6P3 CANADA Seattle, Washington 98101
(604) 419-4401 (206) 447-7000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Proposed Maximum
Title of Securities to be Amount to be Maximum Offering Aggregate Offering Amount of
registered Registered (1)(4) Price per Share Price Registration Fee
---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
par value $0.001 12,667,834 $1.00(2) $12,667,834(2) $ 3,344.31
---------------------------------------------------------------------------------------------------------------
Common Stock
Par value $0.001 2,332,166 $1.05(3) $ 2,448,774(3) $ 646.78
---------------------------------------------------------------------------------------------------------------
Total 15,000,000 $15,116,608 $ 3,991.09
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</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
as amended, this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the 1999 Stock Option Plan described
herein.
(2) Per share exercise price for outstanding options calculated pursuant to
Rule 457(h).
(3) Estimated pursuant to Rules 457(h) and 457(c), solely for the purpose of
computing the amount of the registration fee, based on the closing bid price of
the Common Stock on October 18, 2000 as reported on the OTC Bulletin Board.
(4) This registration statement also covers additional shares of common
stock which become issuable under the 1999 Stock Option Plan with respect to the
securities registered hereunder by reason of a reorganization, recapitalization,
stock split, stock dividend, combination of shares, merger or consolidation, or
<PAGE>
the sale, conveyance or other transfer by Indexonly of all or substantially all
of its property or other similar transaction effected without receipt of
consideration which results in an increase in the number of outstanding shares
of Indexonly stock.
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 Items 1 and 2 of 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, 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.
The following documents filed by Indexonly Technologies, Inc. (the "Registrant")
with the Securities and Exchange Commission (the "Commission") are incorporated
herein by reference:
a. The final prospectus included in the Registrant's Registration Statement
for Small Business Issuers on Form SB-2, as amended by Amendment No. 3 filed
August 4, 2000.
b. All other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") since the
effective date of its Form SB-2 (or August 4, 2000), and
c. The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form SB-2, as amended by Amendment
No. 3 filed August 4, 2000.
All documents filed with the Commission by the Registrant 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 here in have been sold or which
deregisters all securities then remaining unsold, are deemed to be incorporated
by reference in this Registration Statement and to be a part thereof from the
date of filing of such documents.
Any statement contained herein or in a document, all or a portion of which is
incorporated or deemed to be incorporated by reference shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained in any subsequently filed document modifies or
supersedes such first 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. Interest of Named Experts and Counsel.
None.
<PAGE>
Item 6. Indemnification of Directors and Officers.
As authorized by Section 78.751 of the Nevada General Corporation Law, the
Registrant may indemnify its officers and directors against expenses incurred by
such persons in connection with any threatened, pending or completed action,
suit or proceedings, whether civil, criminal, administrative or investigative,
involving such persons in their capacities as officers and directors, so long as
such persons acted in good faith and in a manner which they reasonably believed
to be in the Registrant's best interests. If the legal proceeding, however, is
by or in our right, the director or officer may not be indemnified in respect of
any claim, issue or matter as to which he is adjudged to be liable for
negligence or misconduct in the performance of his duty to the Registrant unless
a court determines otherwise.
Under Nevada law, corporations may also purchase and maintain insurance or make
other financial arrangements on behalf of any person who is or was a director or
officer (or is serving at the request of the corporation as a director or
officer of another corporation) for any liability asserted against such person
and any expenses incurred by him in his capacity as a director or officer. These
financial arrangements may include trust funds, self-insurance programs,
guarantees and insurance policies.
The Registrant's articles of incorporation, as amended, provide that its
directors or officers shall not be personally liable to the Registrant or any of
its stockholders for damages resulting from breaches of fiduciary duty as a
director or officer for acts or omissions, except for damages resulting from
acts or omissions which involve intentional misconduct, fraud, knowing violation
of law, or the payment of dividends in violation of the Nevada Revised Statutes.
The Registrant's bylaws provide for the indemnification of officers and
directors to the fullest extent possible under Nevada Law, against expenses
(including attorney's fees), judgments, fines, settlements, and other amounts
actually and reasonably incurred in connection with any proceeding, arising by
reason of the fact that such person is or was our agent. The Registrant is also
granted the power, to the maximum extent and in the manner permitted by the
Nevada Revised Statutes, to indemnify each of its employees and agents (other
than directors and officers) against expenses (including attorneys' fees),
judgments, fines, settlements and other amounts actually and reasonably incurred
in connection with any proceeding, arising by reason of the fact that such
person is or was the Registrant's agent.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits included herewith or incorporated herein by reference are
made part of this Registration Statement:
4.1* Indexonly Technologies, Inc. 1999 Stock Option Plan;
4.2 Form of Stock Option Agreement;
5.1 Opinion of Ogden Murphy Wallace, P.L.L.C.;
23.1 Consent of KPMG L.L.P., Independent accountants;
23.2 Consent of Ogden Murphy Wallace, P.L.L.C. (see Exhibit 5.1);
24.1 Power of Attorney (included on signature page).
* Incorporated by reference to the Registrant's Registration Statement for
Small Business Issuers on Form SB-2, as amended by Amendment No. 3 filed
August 4, 2000.
<PAGE>
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:
(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. 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
registereed) 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 (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act of 1934 that are incorporated by reference in this 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 bonafide 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.
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 Exchange Act of
1934 (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the 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.
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 forgoing 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
The Registrant. 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 Burnaby, Province of British Columbia, Canada, on
October 19, 2000.
INDEXONLY TECHNOLOGIES, INC.
By: /s/ Cliff Sweeney
-----------------------
Cliff Sweeney
Chairman and Chief Executive Officer
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Burnaby, Province of
British Columbia, Canada, on October 19, 2000.
INDEXONLY TECHNOLOGIES, INC. 1999 STOCK OPTION PLAN
By: /s/ Cliff Sweeney
-----------------------
Cliff Sweeney
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Cliff Sweeney, as his true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
or all amendments (including post-effective amendments) to this Registration
Statement on Form S-8 of Indexonly Technologies, Inc., and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, grant 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 foregoing, as fully to 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 substitutes, 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
dates stated.
Signature Title Date
--------- ----- ----
/s/ Cliff Sweeney Chairman and Chief October 19, 2000
-----------------
Executive Officer
/s/ David Manning Chief Financial Officer October 19, 2000
-----------------
/s/ Norm Friend Director October 19, 2000
---------------
/s/ Peter Ribeiro Director October 19, 2000
-----------------
<PAGE>
EXHIBIT INDEX
Exhibit Number Description
-------------- -----------
4.1* Indexonly Technologies, Inc. 1999 Stock Option Plan;
4.2 Form of Stock Option Agreement;
5.1 Opinion of Ogden Murphy Wallace, P.L.L.C.;
23.3 Consent of KPMG L.L.P., Independent accountants;
23.4 Consent of Ogden Murphy Wallace, P.L.L.C. (see Exhibit 5.1);
24.1 Power of Attorney (included on signature page).
* Incorporated by reference to the Registrant's Registration Statement for
Small Business Issuers on Form SB-2, as amended by Amendment No. 3 filed August
4, 2000.
<PAGE>
Exhibit 4.2
OPTION AGREEMENT
FOR THE 1999 STOCK OPTION PLAN OF
INDEXONLY TECHNOLOGIES, INC.
BETWEEN:
INDEXONLY TECHNOLOGIES, INC. (the "Company")
AND:
[insert name] (the "Optionee")
This Option Agreement is entered into between the Company and the Optionee
pursuant to the Company's 1999 Stock Option Plan (the "Plan"), a copy of which
is attached hereto as Schedule "A", and confirms that subject to regulatory
approval, if required, and subject to compliance with all applicable securities
laws:
1. On *, 2000 (the "Grant Date");
2. the Optionee, an employee/director/officer/consultant of/to the Company;
3. Was granted the option (the "Option") to purchase Common shares (the
"Option Shares") of the Company upon and subject to the terms and
conditions contained in the Plan;
4. Exercisable at the price (the "Exercise Price") of US$1.00 per share;
5. The Option shall vest and be exercisable as follows:
(a) with respect to of the Option Shares, on the date which is 90 days from the
date the Company obtains "reporting issuer" status with the US Securities
and Exchange Commission the "Reporting Date");
(b) with respect to - of the Option Shares, on the date which is 180 days from
the Reporting Date;
(c) with respect to - of the Option Shares, on March 1, 2001; and
(d) with respect to - of the Option Shares, on March 1, 2002.
6. Unless the Option is terminated earlier pursuant to the terms of the
Plan, the option shall terminate on , 2003.
-----------
7. By signing this Agreement the Optionee acknowledges that he has read and
understands the Plan.
IN WITNESS WHEREOF the parties hereto have executed this Option Agreement as of
, 2000.
-------------
INDEXONLY TECHNOLOGIES, INC.
Per:
------------------------------ ------------------------------
Authorized Signatory OPTIONEE: (Signature
<PAGE>
Exhibit 5.1
[OGDEN MURPHY WALLACE, PLLC LETTERHEAD]
October 19, 2000
Indexonly Technologies, Inc.
3823 Henning Drive, Suite 217
Vancouver, BC V5C 6P3
CANADA
Re: Registration Statement on Form S-8 of Indexonly Technologies, Inc.;
Indexonly Technologies, Inc. 1999 Stock Option Plan
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form S-8
executed by you on October 19, 2000, and to be filed with the Securities and
Exchange Commission (the "SEC") in connection with the registration under the
Securities Act of 1933, as amended, of 15,000,000 shares of your common stock,
par value of $.001 per share (the "Common Stock"), which will be issuable under
the Indexonly Technologies, Inc. 1999 Stock Option Plan (the "Plan").
As your counsel in connection with the Registration Statement, we have examined
the proceedings taken by you in connection with the adoption of the Plan and the
authorization of the issuance of the shares of Common Stock under the Plan (the
"Plan Shares") and such documents as we have deemed necessary to render this
opinion.
Based upon the foregoing, it is our opinion that the Plan Shares, when issued
and outstanding pursuant to the terms of the Plan, will be validly issued, fully
paid and non-assessable shares of Common Stock.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to all references to our firm included in or made a
part of the Registration Statement.
Very truly yours,
OGDEN MURPHY WALLACE, P.L.L.C.
/s/ James L. Vandeberg
James L. Vandeberg
<PAGE>
Exhibit 23.3
Independent Accountants' Consent
The Board of Directors
Indexonly Technologies, Inc.
We consent to the incorporation reference in the registration statement on Form
S-8 of Indexonly Technologies, Inc. of our auditors' report dated January 25,
2000, on the consolidated balance sheet of Indexonly Technologies, Inc. as at
December 31, 1999 and the related consolidated statements of operations,
stockholders' equity (deficit) and cash flows for the period from June 28, 1999
(inception) to December 31, 1999, which report appears in the December 31, 1999
annual report on Form 10-KSB.
Our report dated January 25, 2000, contains an explanatory paragraph that states
that the Company has suffered recurring losses from operations and negative cash
flows, which raise substantial doubt about its ability to continue as a going
concern. The consolidated financial statements do not include any adjustments
that might result from the outcome of that uncertainty.
Chartered Accountants
/s/KPMG LLP
Vancouver, Canada
September 7, 2000
<PAGE>
