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As filed with the Securities and Exchange Commission on January 16, 2001
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
VERTICALBUYER, INC.
(Exact name of registrant as specified in its charter)
Delaware 98-0216911
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(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
235 West 56th Street, #17B
New York, New York 10019
(646) 286-0516
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(Address, Including Zip Code and Telephone Number, of Principal
Executive Offices)
Consulting Agreement with Daniel Ross
(Full Title of Plan)
Copy to:
Timothy Neil David Rosen, Adam S. Gottbetter, Esq.
President and Chief Executive Officer Kaplan Gottbetter & Levenson, LLP
235 West 56th Street, #17B 630 Third Avenue
New York, New York 10019 New York, New York 10017
(646) 286-0516 (212) 983-6900
Name, Address and Telephone Number
Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed
Title of Securities Amount To Be Proposed Maximum Maximum Aggregate Amount of
To Be Registered Registered Offering Price Per Share Offering Price Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, par 50,000 $1.00 $50,000 $13
value $.001 per share
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TOTAL: 50,000 $50,000 $13
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</TABLE>
1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. PLAN INFORMATION
Pursuant to the Note to Part I of the Form S-8, the information
required by Part I is not filed with the Securities and Exchange Commission.
Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL
INFORMATION
The Company will provide without charge to each person to whom a copy
of a Section 10(a) Prospectus hereunder is delivered, upon the oral or written
request of such person, a copy of any document incorporated in this Registration
Statement by reference. Requests for such information should be directed to
VerticalBuyer, Inc. 235 West 56th Street, #17B, New York, New York 10019, (646)
286-0516.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed by the Company with the
Securities and Exchange Commission, are hereby incorporated by reference into
this Prospectus:
a) The Company's Registration Statement on Form SB-2 filed by the
Registrant with the Commission on April 5, 2000 and all the
amendments thereto;
b) All other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Exchange Act since the end of the fiscal
year covered by the Form SB-2; and
c) The description of the common stock, $.001 par value per
shares (the "Common Stock") of the Registrant as contained in
the Registrant's Registration Statement on Form SB-2, file No.
333-34144.
All documents filed by the Registrant pursuant to Section 13 (a), 13
(c), 14 and 15 (d) of the Exchange Act subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment to
this Registration Statement which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold shall
be deemed to be incorporated in this Registration Statement by reference and to
be a part hereof from the date of filing of such documents. Any statement
contained in this Registration Statement, in a supplement to this Registration
Statement or 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 subsequently filed supplement
to this Registration Statement or in any document that is subsequently
incorporated by reference
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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. See Item 3(c) above
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of common stock registered in this
Registration Statement has been passed upon for the Registrant by Kaplan
Gottbetter & Levenson, LLP, whose opinion is attached hereto as Exhibit 5.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law provides for the indemnification
of the officers, directors and corporate employees and agents of the Company
under certain circumstances as follows:
INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND
AGENTS; INSURANCE.
(a) A corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding if he 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 action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person
did not act in good faith and in a manner which he reasonably believed
to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had reasonable cause
to believe that his conduct was unlawful.
(b) A corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to
procure a judgment in its favor by
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reason of the fact that he is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such
action or suit if he 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 except that no indemnification shall be made 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 action or suit
was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstance of the
case, such person is fairly and reasonably entitled to indemnity for
such expenses which the Court of Chancery or such court shall deem
proper.
(c) To the extent that a director, officer, employee or agent
of a corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in subsections
(a) and (b) of this section, or in defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including
attorney's fees) actually and reasonably incurred by him in connection
therewith.
(d) Any indemnification under subsections (a) and (b) of this
section (unless ordered by a court) shall be made by the corporation
only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper
in the circumstances because he has met the applicable standard of
conduct set forth in subsections (a) and (b) of this section. Such
determination shall be made (1) by the board of directors by a majority
vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (2) if such a quorum is not obtainable,
or, even if obtainable a quorum of disinterested directors so directs,
by independent legal counsel in a written opinion, or (3) by the
stockholders.
(e) Expenses incurred by an officer or director in defending
any civil, criminal, administrative or investigative action, suit or
proceeding may be paid by the corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director to repay such amount if it
shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this section. Such
expenses including attorneys' fees incurred by other employees and
agents may be so paid upon such terms and conditions, if any, as the
board of directors deems appropriate.
(f) The indemnification and advancement expenses provided by,
or granted pursuant to, the other subsections of this section shall not
be deemed
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exclusive of any other rights to which those seeking indemnification or
advancement expenses may be entitled under any by-law, agreement, vote
of stockholders or disinterested directors or otherwise, both as to
action in his official capacity and as to action in another capacity
while holding such office.
(g) A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him and incurred by
him in any such capacity or arising out of his status as such, whether
or not the corporation would have the power to indemnify him against
such liability under this section.
(h) For purposes of this Section, references to "the
corporation" shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and authority to
indemnify its directors, officers and employees or agents so that any
person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under this section with
respect to the resulting or surviving corporation as he would have with
respect to such constituent corporation as he would have with respect
to such constituent corporation if its separate existence had
continued. (i) For purposes of this section, references to "other
enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to "serving at the
request of the corporation" shall include any service as a director,
officer, employee or agent of the corporation which imposes duties on,
or involves services by, such director, officer, employee, or agent
with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted
in a manner "not opposed to the best interests of the corporation" as
referred to in this section.
(j) The indemnification and advancement of expenses provided
by, or granted pursuant to, this section shall, unless otherwise
provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors, and administrators of such person.
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Articles Ninth and Tenth of the Company's certificate of incorporation
provide as follows:
NINTH
The personal liability of the directors of the Corporation is
hereby eliminated to the fullest extent permitted by the provisions of
paragraph (7) of subsection (b) of Section 102 of the Delaware General
Corporation Law, as the same may be amended and supplemented.
TENTH
The Corporation shall, to the fullest extent permitted by the
provisions of Section 145 of the Delaware General Corporation Law, as
the same may be amended and supplemented, indemnify any and all persons
whom it shall have power to indemnify under said section from and
against any and all of the expenses, liabilities or other matters
referred to in or covered by said section, and the indemnification
provided for herein shall not be deemed exclusive of any other rights
to which those indemnified may be entitled under any by-law, agreement,
vote of stockholders or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another capacity
while holding such office, and shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a
person.
Article XII of the Registrant's by-laws provides as follows:
ARTICLE XII--INDEMNIFICATION OF DIRECTORS AND OFFICERS
1. Indemnification. The corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any
proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason
of the fact that such person is or was a director, trustee, officer,
employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, trustee, officer, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or
proceeding if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best
interests of the corporation, and with respect to any criminal action
or proceeding, had no reasonable cause to believe such person's conduct
was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, by itself, create a
presumption that the person did not act in good faith and in a manner
which the person reasonably
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believed to be in or not opposed to the best interest of the
corporation, and with respect to any criminal action or proceeding, had
reasonable cause to believe that such person's conduct was lawful.
2. Derivative Action. The corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of
the corporation to procure a judgment in the corporation's favor by
reason of the fact that such person is or was a director, trustee,
officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, trustee, officer,
employee or agent of any other corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit
or proceeding if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best
interests of the corporation; provided, however, that no
indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable for gross
negligence or willful misconduct in the performance of such person's
duty to the corporation unless and only to the extent that the court in
which such action or suit was brought shall determine upon application
that, despite circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses as such court shall
deem proper. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, by itself, create a
presumption that the person did not act in good faith and in a manner
which the person reasonably believed to be in or not opposed to the
best interest of the corporation.
3. Successful Defense. To the extent that a director, trustee,
officer, employee or agent of the corporation has been successful, on
the merits or otherwise, in whole or in part, in defense of any action,
suit or proceeding referred to in paragraphs 1 and 2 above, or in
defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
4. Authorization. Any indemnification under paragraph 1 and 2
above (unless ordered by a court) shall be made by the corporation only
as authorized in the specific case upon a determination that
indemnification of the director, trustee, officer, employee or agent is
proper in the circumstances because such person has met the applicable
standard of conduct set forth in paragraph 1 and 2 above. Such
determination shall be made (a) by the board of directors by a majority
vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, (b) by independent legal counsel (selected
by one or more of the directors, whether or not a quorum and whether or
not disinterested) in a written opinion, or (c) by the stockholders.
Anyone making such a determination under
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this paragraph 4 may determine that a person has met the standards
therein set forth as to some claims, issues or matters but not as to
others, and may reasonably prorate amounts to be paid as
indemnification.
5. Advances. Expenses incurred in defending civil or criminal
actions, suits or proceedings shall be paid by the corporation, at any
time or from time to time in advance of the final disposition of such
action, suit or proceeding as authorized in the manner provided in
paragraph 4 above upon receipt of an undertaking by or on behalf of the
director, trustee, officer, employee or agent to repay such amount
unless it shall ultimately be determined by the corporation that the
payment of expenses is authorized in this Section.
6. Nonexclusivity. The indemnification provided in this
Section shall not be deemed exclusive of any other rights to which
those indemnified may be entitled under any law, by-law, agreement,
vote of stockholders or disinterested director or otherwise, both as to
action in such person's official capacity and as to action in another
capacity while holding such office, and shall continue as to a person
who has ceased to be a director, trustee, officer, employee or agent
and shall insure to the benefit of the heirs, executors, and
administrators of such a person.
7. Insurance. The Corporation shall have the power to purchase
and maintain insurance on behalf of any person who is or was a
director, trustee, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director,
trustee, officer, employee or agent of any corporation, partnership,
joint venture, trust or other enterprise, against any liability
assessed against such person in any such capacity or arising out of
such person's status as such, whether or not the corporation would have
the power to indemnify such person against such liability.
8. "Corporation" Defined. For purpose of this action,
references to the "corporation" shall include, in addition to the
corporation, any constituent corporation (including any constituent of
a constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had the power and
authority to indemnify its directors, trustees, officers, employees or
agents, so that any person who is or was a director, trustee, officer,
employee or agent of such of constituent corporation will be considered
as if such person was a director, trustee, officer, employee or agent
of the corporation.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS
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<TABLE>
<CAPTION>
Exhibits No. Description
------------ -----------
<S> <C> <C>
4. Consulting Agreement dated January 12, 2001 between
Registrant and Daniel Ross.
5. Opinion of Counsel, Kaplan Gottbetter & Levenson, LLP.
23.1 Consent of Counsel (included in Exhibit 5 hereto)
23.2 Consent of Leslie Sufrin and Company, P.C., Independent
Auditors
</TABLE>
Item 9. UNDERTAKINGS
1. The Company hereby undertakes:
(a) 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
formation 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 registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(i) and (a)(ii) above do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the Company pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in
this registration statement.
(b) 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 the time shall
be deemed to be the initial bonafide offering thereof.
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(c) 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.
2. The Company 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
(and, where applicable, each filing of any employee benefits 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 herein, and the offering of such
securities at that time shall be deemed to be in the initial bonafide offering
thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to any charter provision, by-law, contract,
arrangement, statute, or otherwise, the Company 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 Company 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 Company 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
In accordance with the requirements of the Securities Act of 1933, the
Company certifies that it has reasonable grounds to believe that it meets all of
the requirements of filing on Form S-8 and authorized this registration
statement to be signed on its behalf by the undersigned, in New York, New York
on January 12, 2001.
VERTICALBUYER, INC.
By: /s/ TIM ROSEN
---------------------------------------------------
Tim Rosen
President and
Chief Executive Officer
/s/ LESLIE KENT
---------------------------------------------------
Leslie Kent
Chief Financial Officer
In accordance with the requirements of the Securities Act of 1933, the
registration statement was signed by the following persons in the capacities and
on the dates stated.
<TABLE>
<CAPTION>
Signature Title Dated
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<S> <C> <C>
/s/ TIM ROSEN President, Treasurer, Director January 12, 2001
------------------------------------------------
Tim Rosen
/s/ LESLIE KENT Chief Financial Officer, January 12, 2001
------------------------------------------------ Secretary, Director
Leslie Kent
/s/ JOSEPH DONAHUE Director January 12, 2001
------------------------------------------------
Joseph Donahue
/s/ ALEXANDER LUPINETTI Director January 12, 2001
------------------------------------------------
Alexander Lupinetti
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibits No. Description
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<S> <C>
4. Consulting Agreement dated January 12, 2001 between Registrant and
Daniel Ross.
5. Opinion of Counsel, Kaplan Gottbetter & Levenson, LLP.
23.1 Consent of Counsel (included in Exhibit 5 hereto)
23.2 Consent of Leslie Sufrin and Company, P.C., Independent Auditors
</TABLE>
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