<PAGE>
As filed with the Securities and Exchange Commission on May 23, 2000
Registration No. 333 - _____________
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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ENOTE.COM INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 59-345315
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(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
185 ALLEN BROOK LANE, WILLISTON, VERMONT 05495
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(Address of Principal Executive Offices)
ENOTE.COM INC. 1997 INCENTIVE STOCK PLAN
ENOTE.COM INC. 1999 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
ENOTE.COM INC. 2000 INCENTIVE STOCK PLAN
----------------------------------------
(Full title of the plans)
JOHN R. VARSAMES
PRESIDENT AND CHIEF EXECUTIVE OFFICER
185 ALLEN BROOK LANE
WILLISTON, VERMONT 05495
(802) 288-9000
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(Name, address and telephone number, including area code of agent for service)
Copy to:
H. KENNETH MERRITT, JR. ESQ.
MERRITT & MERRITT
30 MAIN STREET, SUITE 330
PO BOX 5839
BURLINGTON, VT 05402
(802) 658-7830
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum
Title of Securities to be Amount to be Offering Price Aggregate Offering Amount of
Registered Registered (1) Per Share Price Registration Fee
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 95,226 $1.18(2) $112,383.20(2) $29.67
(1997 Incentive Stock Plan)
- -----------------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value 200,000 $3.00(3) $600,000(3) $158.40
(1999 Non-Employee Directors' Stock
Option Plan)
- -----------------------------------------------------------------------------------------------------------------------
Common Stock, 1,000,000 $3.00(3) $3,000,000 (3) $792.00
$0.01 par value
(2000 Incentive Stock Plan)
- -----------------------------------------------------------------------------------------------------------------------
Total Registration Fee $980.07
- -----------------------------------------------------------------------------------------------------------------------
</TABLE>
- -----------------------
(1) Pursuant to Rule 416 of the Securities Act of 1933, as amended, this
Registration Statement also covers an indeterminable number of
additional Shares that may become issuable pursuant to terms designed
to prevent dilution resulting from stock splits, stock dividends or
similar events.
(2) Estimated solely for the purpose of calculating the registration fee.
Such estimate has been calculated in accordance with Rule 457(h) under
the securities Act of 1933 and is based upon the weighted average of
the exercise price for the options granted under the eNote.com Inc.
1997 Incentive Stock Plan
(3) Estimated solely for the purposes of calculating the registration fee.
In accordance with Rule 457(h) of the Securities Act of 1933, as
amended, the price shown is the average of the bid and ask price of the
Common Stock for May 19, 2000 as reported on the Over-The-Counter
Bulletin Board.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information required by 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, as amended (the "Securities Act"), 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, or portions thereof, as filed with the
Securities and Exchange Commission (the "Commission") by the Company are hereby
incorporated by reference:
(a) The Company's Annual Report on Form 10-KSB for the year ended
December 31, 1999;
(b) The Company's Quarterly Report on Form 10-QSB for the quarter
ended March 31, 2000; and
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement filed pursuant to Section 12 of
the Securities Exchange Act of 1934, including any amendment or
report filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, as amended,
after the date of this Registration Statement and prior to the filing of a
post-effective amendment to the Registration Statement which indicates that all
securities offered hereby have been sold or which de-registers all such
securities 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.
ITEM 4. DESCRIPTION OF SECURITIES.
The Company's Common Stock is registered pursuant to Section 12(g)
of the Exchange Act. See Item 3(c) above.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL")
generally provides that a corporation is authorized to indemnify any person who
is made a party to any threatened, pending or completed action, suit or
proceeding 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, in any of such capacities of another corporation or other
enterprise, if such director, officer, employee or agent 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. This statute describes
in detail the right of the Company to indemnify any such person.
The Company's Certificate of Incorporation and Bylaws state that the
Company shall indemnify its officers, directors, and employees, and may
indemnify its agents, to the full extent permitted by Section 145 of the DGCL.
The Company currently maintains an officers' and directors' liability insurance
policy which covers, subject to the exclusions and limitations of the policy,
officers and directors of the Company against certain liabilities which may be
incurred by them solely in such capacities.
For information regarding the Company's undertaking to submit to
adjudication the issue of indemnification for violation of the securities laws,
see Item 9 hereof. The Company believes that it is the position of the
Securities and Exchange Commission that insofar as the foregoing provisions may
be invoked to disclaim liability for damages arising under the Securities Act,
such provisions are against public policy as expressed in the Securities Act and
are therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
2
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ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
<S> <C>
4.1 Amended Certificate of Incorporation (incorporated by
reference to Exhibit 3(a) the Company's Form 10-KSB
filed with the Commission on September 22, 1999).
4.2 Amended By-laws (incorporated by reference to Exhibit
3(b) of the Company's Form 10-KSB filed with the
Commission on September 22, 1999).
5 Opinion of Merritt & Merritt.
10.12 1997 Incentive Stock Plan (incorporated by reference
to Exhibit 10.12 to the Company's Form 10-KSB filed
with the Commission on September 22, 1999).
10.14 1999 Non-Employee Directors' Stock Option Plan
(incorporated by reference to Exhibit 10.14 to the
Company's Form 10-KSB filed with the Commission on
April 28, 2000).
10.17 2000 Incentive Stock Plan (incorporated by reference
to Exhibit 10.17 of the Company's Form 10-KSB filed
with the Commission on April 28, 2000).
23.1 Consent of Merritt & Merritt (contained in Exhibit
5).
23.2 Consent of Deloitte & Touche LLP.
23.3 Consent of Kelleher & Company.
24 Powers of Attorney (included on the signature page of
this Registration Statement).
</TABLE>
ITEM 9. UNDERTAKINGS.
(A) The undersigned Company 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, as amended (the "1933 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;
(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) 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 Section 15(d) of the 1934 Act that are incorporated by
reference in the Registration Statement.
2. That, for the purpose of determining any liability under the 1933
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 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.
(B) The undersigned Company hereby undertakes that, for purposes of determining
any liability under the 1933 Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the 1934 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 1933 Act may be
permitted to directors, officers and controlling persons of the Company pursuant
to the foregoing provisions, 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 1933 Act and is, therefore,
unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the Company of expenses incurred or paid by a
director, officer or controlling person of 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 1933 Act and will be governed by the final adjudication of such
issue.
3
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SIGNATURES
Pursuant to 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 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 Williston, Vermont, on May 23, 2000.
ENOTE.COM INC.
By: /s/ John R. Varsames
---------------------------------
John R. Varsames
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints each of John R. Varsames and Michael T.
Grennan his true and lawful attorney-in-fact and agent, each acting alone, with
full powers of substitution and resubstitution, for him and his name, place and
stead, in any and all capacities with full power and authority to do any and all
acts and things and to execute any and all instruments which said attorneys and
agents, and any of them, determine may be necessary, advisable or required to
enable the Company to comply with the federal and state securities laws in
connection with the matters covered by this Registration Statement. Without
limiting the generality of the foregoing power and authority, the powers granted
include the power and authority to sign the names of the undersigned in the
capacities indicated to this Registration Statement, to any and all amendments
and supplements, and to all instruments or documents filed as a part of or in
connection with this Registration Statement or amendments or supplements
thereof, and each of the undersigned hereby ratifies and confirms all that said
attorneys and agents, or any of them, shall do or cause to be done by virtue
hereof. This Power of Attorney may be signed in several counterparts.
IN WITNESS WHEREOF, each undersigned individual executed this Power of
Attorney on the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement or amendment thereto has been signed below by the
following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE: TITLE DATE:
<S> <C> <C>
/s/ John R. Varsames President and Chief Executive May 23, 2000
- ------------------------- Officer and Director
John R. Varsames (Principal Executive Officer)
/s/ Michael T. Grennan Chief Financial Officer, Secretary, May 23, 2000
- ------------------------- Treasurer (Principal Financial and
Michael T. Grennan Accounting Officer) and Director
/s/ Leopold Abraham II
- ------------------------- Director May 23, 2000
Leopold Abraham II
/s/ Stanley M. Blau
- ------------------------- Director May 23, 2000
Stanley M. Blau
/s/ James Bowman
- ------------------------- Director May 23, 2000
James Bowman
/s/ Charles W. Quatt
- ------------------------- Director May 23, 2000
Charles W. Quatt
/s/ Victor Reichenstein
- ------------------------- Director May 23, 2000
Victor Reichenstein
</TABLE>
4
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EXHIBIT INDEX
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<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
4.1 Amended Certificate of Incorporation (incorporated by reference
to Exhibit 3(a) the Company's Form 10-KSB filed with the
Commission on September 22, 1999).
4.2 Amended By-laws (incorporated by reference to Exhibit 3(b) of the
Company's Form 10-KSB filed with the Commission on September 22,
1999).
5 Opinion of Merritt & Merritt.
10.12 1997 Incentive Stock Plan (incorporated by reference to Exhibit
10.12 to the Company's Form 10-KSB filed with the Commission on
September 22, 1999).
10.14 1999 Non-Employee Directors' Stock Option Plan (incorporated by
reference to Exhibit 10.14 to the Company's Form 10-KSB filed
with the Commission on April 28, 2000).
10.17 2000 Incentive Stock Plan (incorporated by reference to Exhibit
10.17 of the Company's Form 10-KSB filed with the Commission on
April 28, 2000).
23.1 Consent of Merritt & Merritt (contained in Exhibit 5).
23.2 Consent of Deloitte & Touche LLP.
23.3 Consent of Kelleher & Company.
24 Powers of Attorney (included on the signature page of this
Registration Statement).
</TABLE>
5
<PAGE>
Exhibit 5
May 22, 2000
Board of Directors
eNote.com Inc.
185 Allen Brook Lane
Williston, VT 05495
Re: eNote.com Inc. - Form S-8
-------------------------
Ladies and Gentlemen:
We have acted as counsel to eNote.com Inc. (the "Company") in
connection with the registration on Form S-8 under the Securities Act of 1933,
as amended (the "Registration Statement") of (i) 1,000,000 shares of the Common
Stock, par value $0.01 per share, of the Company authorized for issuance under
the eNote.com Inc. 2000 Incentive Stock Plan (the "2000 Plan"), (ii) 95,240
shares of the Common Stock, par value $0.01 per share, of the Company authorized
for issuance under the eNote.com Inc. 1997 Incentive Stock Plan (the "1997
Plan") and (iii) 200,000 shares of the Common Stock, par value $0.01 per share,
of the Company authorized for issuance under the eNote.com Inc. 1999
Non-Employee Directors' Stock Option Plan (the "1999 Plan" and together with the
2000 Plan and the 1997 Plan, each a "Plan" and collectively, the "Plans"). We
are furnishing you this opinion as required by the terms of the Registration
Statement.
We have reviewed the Company's charter documents and the corporate
proceedings taken by the Company in connection with the establishment of the
Plans. Based on this review, we are of the opinion that when such shares have
been issued and sold in accordance with the provisions of the applicable Plan,
and in accordance with the Registration Statement, such shares will be duly
authorized, validly issued, fully-paid and nonassessable shares of the Company's
Common Stock.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
This opinion letter is rendered to you as of the date set out above. We
disclaim any obligation to advise you of facts, circumstances, events or
developments which hereafter may be brought to our attention and which may
alter, affect or modify the opinion expressed herein.
This opinion is solely for your benefit and may not be relied upon,
used, published, distributed, or quoted in any manner whatsoever by or to any
other person or entity, nor filed with any governmental agency (other than as
consented to above), without the prior written consent of this firm.
Very truly yours,
/s/ MERRITT & MERRITT
Merritt & Merritt
<PAGE>
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
eNote.com Inc. on Form S-8 of our report dated March 10, 2000 (April 20, 2000 as
to Note 13), appearing in and incorporated by reference in the Annual Report on
Form 10-KSB of eNote.com Inc. for the year ended December 31, 1999.
/s/ Deloitte & Touche LLP
New York, New York
May 22, 2000
<PAGE>
Exhibit 23.3
KELLEHER & COMPANY
Certified Public Accountants
137 South Street
Boston, MA 02111
617) 451-9720
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Dear Sirs:
We consent to the incorporation by reference in the Registration Statement
on Form S-8 our report dated December 21, 1999 with respect to the 1998
financial statements of Navis Technologies, Ltd. included in eNote.com Inc.'s
Annual Report on Form 10-KSB for the year ended December 31, 1999.
Sincerely,
/s/ Kelleher & Company
Kelleher & Company
May 15, 2000
