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As filed with the Securities and Exchange Commission on December 1, 2000
SEC File No.
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
Registration Statement
Under the Securities Act of 1933
_________________________________
NETCOMMERCE, INC.
(Name of Small Business Issuer as specified in its charter)
Nevada 7372 84-1091271
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
1900 Westridge Drive
Irving, Texas 75038
972-465-5900
(Address of Principal Executive Offices)
NetCommerce, Inc.
Stock and Options for services
(Full Title of the Plan)
Mark Lindberg
1900 Westridge Drive
Irving, Texas 75038
972-465-5900
(Name, address and telephone number of Agent for Service)
Copies to:
Gerald L. Fishman, Esq.
Charles Mack, Esq
55 Madison Street
Suite 3700
Chicago, IL 60602
312-424-0600
312-424-0660 - Fax
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CALCULATION OF REGISTRATION FEE
======================================================================================================================
Title of Each Class Proposed Maximum Proposed Maximum
of Securities To Be Amount To Be Offering Price Aggregate Amount of
Registered Registered (1) Per Share (2) (3) Offering Price Registration Fee
----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value 9,800,000 $.05 $490,000 $980.00
======================================================================================================================
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(1) In addition, pursuant to Rule 416(a) under the Securities Act of 1933, as
amended, this registration statement also covers any additional securities
to be offered or issued in connection with stock splits, stock dividends or
similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457.
(3) In accordance with Rule 457(h), the price represents the average of the
closing bid and asked price of the Company's Common Stock as of November
27, 2000.
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NETCOMMERCE, INC.
STOCK FOR SERVICES
EXPLANATORY NOTE
The Employees
Mark Lindberg and Daniel Henderson, Chief Executive Officer and President; and
Executive Vice-President and Secretary, respectively; have agreed to receive
stock as part of their employment agreements. Although they have no present
intention to sell their shares, when such shares are sold, a re-offer prospectus
will be provided.
The Consultants
The Consultants have agreed to provide their expertise and advice to the
Company for the purposes set forth in their agreements with the Company. The
Agreements for consulting are as follows 1) Joss Resources, Inc. provides
marketing services, the office and sales support in Salt Lake, Utah; 2) JDL
Resources, Inc. provides marketing services, the office and sales support in
Dallas, Texas, including Easysearch Results. Com.; 3) Jonathan I. Small provides
advisory services, investor relation services (including handling all inquires),
and help with corporate structure and management.; 4)Donald W Prosser PC
provides CFO and SEC related services and helps with the accounting systems and
operations.; 5) John Herzog provides consulting and development services on the
billing, sales tracking and accounting system.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Not filed as part of this Registration Statement pursuant to the Note to Part
I of Form S-8.
Item 2. Registrant Information Annual Information.
Not filed as part of this Registration Statement pursuant to 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 NetCommerce, Inc. (the "Registrant") with
the Securities and Exchange Commission ("Commission") are hereby incorporated in
this Registration Statement by this reference:
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(a) The Registrant's Annual Report on Form 10-KSB for the year ended
May 31, 2000.
(b) The Registrant's Quarterly Report on Form 10-QSB for the
quarters ended, August 31, 2000;
(c) The Registrants Current Report Registrant on Form 8-K dated
March 7, 2000, and;
(e) All other reports filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 ("Exchange Act") since
January 1, 1999;
(f) The latest prospectus filed pursuant to Rule 424(b) under the
Securities Act of 1933
All reports and documents filed by the Registrant after the date hereof
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act,
prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing such
documents. Any statement contained herein or any document, all or a portion of
which is incorporated or deemed to be 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 in any subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies or
supersedes such 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. Interests of Names, Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers.
The only statute, charter provision, bylaw, contract, or other arrangement
under which any controlling person, director or officer of registrant is insured
or indemnified in any manner against any liability which they may incur in their
capacity are Sections 78.7502 and 78.751 of the Nevada Corporations Law, the
text of which is set forth below.
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Section 78.7502. Discretionary and mandatory indemnification of officers,
directors, employees and agents: General provisions
1. 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,
except 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 the action, suit or proceeding if he acted 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 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, does
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 that, with respect to any criminal action or
proceeding, he had reasonable cause to believe that his conduct was unlawful.
2. 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
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 amounts paid in
settlement and attorneys' fees actually and reasonably incurred by him in
connection with the defense or settlement of the action or suit if he acted in
good faith and in a manner which he reasonably believed to be in or not opposed
to the best interests of the corporation. Indemnification may not be made for
any claim, issue or matter as to which such a person has been adjudged by a
court of competent jurisdiction, after exhaustion of all appeals therefrom, to
be liable to the corporation or for amounts paid in settlement to the
corporation, unless and only to the extent that the court in which the action or
suit was brought or other court of competent jurisdiction determines upon
application that in view of all the circumstances of the case, the person is
fairly and reasonably entitled to indemnity for such expenses as the court deems
proper.
3. 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 1 and 2, or in defense of
any claim, issue or matter therein, the corporation shall indemnify him against
expenses, including attorneys' fees, actually and reasonably incurred by him in
connection with the defense.
Section 78.751. Authorization required for discretionary indemnification;
advancement of expenses; limitation on indemnification and advancement of
expenses
1. Any discretionary indemnification under NRS 78.7502, unless ordered by a
court or advanced pursuant to subsection 2, may 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. The
determination must be made:
(a) By the stockholders;
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(b) By the board of directors by majority vote of a quorum consisting of
directors who were not parties to the action, suit or proceeding;
(c) If a majority vote of a quorum consisting of directors who were not
parties to the action, suit or proceeding so orders, by independent legal
counsel in a written opinion; or
(d) If a quorum consisting of directors who were not parties to the action,
suit or proceeding cannot be obtained, by independent legal counsel in a written
opinion.
2. The articles of incorporation, the bylaws or an agreement made by the
corporation may provide that the expenses of officers and directors incurred in
defending a civil or criminal action, suit or proceeding must be paid by the
corporation as they are incurred and in advance of the final disposition of the
action, suit or proceeding, upon receipt of an undertaking by or on behalf of
the director or officer to repay the amount if it is ultimately determined by a
court of competent jurisdiction that he is not entitled to be indemnified by the
corporation. The provisions of this subsection do not affect any rights to
advancement of expenses to which corporate personnel other than directors or
officers may be entitled under any contract or otherwise by law.
3. The indemnification and advancement of expenses authorized in or ordered by
a court pursuant to this section:
(a) Does not exclude any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under the articles of
incorporation or any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, for either an action in his official capacity or an
action in another capacity while holding his office, except that
indemnification, unless ordered by a court pursuant to NRS 78.7502 or for the
advancement of expenses made pursuant to subsection 2, may not be made to or on
behalf of any director or officer if a final adjudication establishes that his
acts or omissions involved intentional misconduct, fraud or a knowing violation
of the law and was material to the cause of action.
(b) Continues for a person who has ceased to be a director, officer,
employee or agent and inures to the benefit of the heirs, executors and
administrators of such a person
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following Exhibits are hereby filed as part of this Registration
Statement:
4.1* Certificate of Incorporation of NetCommerce, Inc.
4.2* Amended Certificate of Incorporation
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4.3* By-laws of NetCommerce, Inc.
5.1 Opinion of Wolin & Rosen, Ltd.
10.1 Employment agreement with Mark Lindberg
10.2 Employment agreement with Daniel Henderson
10.3 Consulting agreement with Joss Resources, Inc.
10.4 Consulting agreement with JDL Resources, Inc.
10.5 Consulting agreement with Jonathan L. Small
10.6 Consulting agreement with Donald W Prosser PC
10.7 Consulting agreement John Herzog
23.1 Consent of Wolin & Rosen, Ltd. (included in Exhibit 5.1)
23.2 Consent of McKennon, Wilson & Morgan LLP
24.1 Power of Attorney (set forth on the signature page filed herewith)
---------
* For Exhibit 4.1, 4.2, 4.3 Refer to the 10KSB May 31, 1999 filed.
Item 9. Undertakings.
(a) The 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;
(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, paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment is incorporated by
reference in the Registration Statement from periodic reports filed by the
Registrant under the Securities Exchange Act of 1934, as amended.
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(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 bona fide offering thereof.
(3) To file a post-effective amendment to remove from registration
any of the securities being registered that remain unsold at the end of the
offering.
(b) The Registrant hereby undertakes that, for purpose of determining any
liability under the Securities Act of 1933, each filing of the Registrant's
annual report pursuant to Section 13(a) or 15(d) of the Securities 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.
The undertaking concerning indemnification is set forth in Part II, Item 6.
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SIGNATURES
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 Pompano Beach, State of Florida, on the 1st day of
December, 2000.
NETCOMMERCE, INC.
By:/s/ Mark Lindberg
-----------------------------
Mark Lindberg,
CEO
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Mark Lindberg his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution for him in his name, place and stead, in any and
all capacities, to sign this Registration Statement and any and all amendments
(including post-effective amendments) to this Registration Statement on Form S-8
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission under the
Securities Act of 1933, as amended.
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.
Signatures Title Date
-------------------------- --------------------------- -----------------
/s/Mark Lindberg Chairman of the Board December 1, 2000
-------------------------- of Directors, President and
Mark Lindberg Chief Executive Officer
/s/Daniel Henderson Executive Vice-President, December 1, 2000
-------------------------- Secretary, and Director
Daniel Henderson
/s/Donald W Prosser Director, and Chief December 1, 2000
-------------------------- Financial Officer
Donald W Prosser
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