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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 14, 2000
REGISTRATION NO. 333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
INTERACTIVE NETWORK, INC.
(Exact name of Registrant as Specified in Its Charter)
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California 94-3025019
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
1161 OLD COUNTY ROAD
BELMONT, CALIFORNIA 94002
(Address of Principal Executive Offices)
INTERACTIVE NETWORK, INC. 1999 STOCK OPTION PLAN
(Full Title of the Plan)
------------------------------------------------
BRUCE W. BAUER
PRESIDENT
INTERACTIVE NETWORK, INC.
1161 OLD COUNTY ROAD
BELMONT, CALIFORNIA 94002
(Name and Address of Agent for Service)
(650) 508-8793
(Telephone Number, Including Area Code, of Agent For Service)
Copy to:
ROBERT S. TOWNSEND, ESQ.
MORRISON & FOERSTER LLP
425 MARKET STREET
SAN FRANCISCO, CALIFORNIA 94105
(415) 268-7000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Securities to be Offering Price Aggregate Offering Registration
to be Registered Registered Per Share(2) Price Fee
- ------------------- ---------- ----------------- ------------------ ------------
<S> <C> <C> <C> <C>
Common Stock, no 3,650,000(1) $ 5.28125 $ 19,276,562 $ 5,089
par value per share
</TABLE>
(1) Represents shares available for grant under the 1999 Stock Incentive
Plan.
(2) Estimated in accordance with Rule 457(h) under the Securities Act of
1933, as amended, solely for the purpose of calculating the registration
fee. Computation based upon the average of the high and low prices of the
Registrant's Common Stock as reported on the OTC Bulletin Board on March
7, 2000.
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PART I
INFORMATION REQUIRED IN THE
SECTION 10 (A) PROSPECTUS
The documents containing the information concerning the Interactive
Network, Inc. 1999 Stock Option Plan specified in Part I of Form S-8 (plan
information and registrant information and employee plan annual information)
will be sent or given to employees as specified by Securities and Exchange
Commission (the "Commission") Rule 428(b)(1) of the Securities Act of 1933, as
amended (the "Securities Act"). Such documents need not be filed with the
Commission either as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424 of the Securities Act. These
documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Form S-8 (Part II hereof), taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Interactive Network, Inc. (the
"Registrant") with the Commission are incorporated by reference herein:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998, filed on March 30, 1999, pursuant to Section 13(a) of
the Securities Exchange Act of 1934 (the "Exchange Act").
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the audited
financial statements covered in (a) above.
(c) The description of the Registrant's Common Stock which is contained in
its Registration Statement (No. 33-42951) on Form S-1 filed with the
Commission on September 24, 1991.
All documents filed by the Registrant with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of 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
to be incorporated by reference into this Registration Statement and to be a
part hereof from the date of filing such documents.
Any statement contained in a document 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 herein or in any subsequently filed document which also 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 NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Bylaws provide that the Company will indemnify its agents
to the fullest extent permitted by California law. The Registrant is also
empowered under its Bylaws to enter into indemnification agreements with its
directors and officers and to purchase insurance on behalf of any person whom it
is required or permitted to indemnify. The Registrant has entered into
indemnification agreements with each of its directors and executive officers.
In addition, the Registrant's Amended and Restated Articles of
Incorporation provide that the liability of the Registrant's directors shall be
eliminated to the fullest extent permissible under California law. This
provision in the Amended and Restated Articles of Incorporation does not
eliminate a director's duty of care, and in appropriate circumstances equitable
remedies such as an injunction or other forms of non-monetary relief will remain
available under California law. Each director will continue to be subject to
liability for breach of the director's duty of loyalty to the Registrant, for
acts or omission not in good faith or involving
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intentional misconduct or knowing violations of law, for acts or omissions that
the director believes to be contrary to the best interests of the Registrant or
its shareholders, for any transaction from which the director derived an
improper personal benefit, for improper transactions between the director and
the Registrant and for improper distributions to shareholders and loans to
directors and officers. This provision also does not affect a director's
responsibilities under any laws, such as the federal securities laws or state or
federal environmental laws.
The Registrant has entered into agreements with its directors and executive
officers that require the Registrant to indemnify such persons against expenses,
judgments, fines, settlements and other amounts actually and reasonably incurred
(including expenses of derivative action) in connection with any proceeding,
whether actual or threatened, to which any such person may be made a party by
reason of the fact that such person is or was a director or officer of the
Registrant or any of its affiliated enterprises, provided 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 Registrant and, with respect to any
criminal proceeding, had no reasonable cause to believe his or her conduct was
unlawful. The indemnification agreement also sets forth certain procedures that
will apply in the event of a claim for indemnification thereunder.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Amended and Restated Articles of Incorporation of the Registrant
(incorporated by reference to Exhibit 4.1 to the Registrant's Form S-8
Registration Statement, as filed with the Commission on November 10,
1992).
4.2 Certificate of Determination of the Registrant, filed with the
California Secretary of State on September 20, 1994 (incorporated by
reference to Exhibit 3.3 to the Registrant's Form 8-K Report, as filed
with the Commission on October 3, 1994).
4.3 Certificate of Amendment of Amended and Restated Articles of
Incorporation of Registrant, dated May 22, 1995 (incorporated by
reference to Exhibit 3.3 of the Registrant's Form 10-K Annual Report,
as filed with the Commission on March 30, 1999).
4.4 Bylaws of the Registrant, as amended (incorporated by reference to
Exhibit 4.2 to the Registrant's Form S-8 Registration Statement, as
filed with the Commission on November 10, 1992).
4.5 Amendment to By-laws of the Registrant, dated February 26, 1999
(incorporated by reference to Exhibit 3.4(b) of the Registrant's Form
10-K Annual Report, as filed with the Commission on March 30, 1999).
5.1 Opinion of Morrison & Foerster LLP.
23.1 Consent of KPMG LLP, Independent Public Accountants.
23.2 Consent of Morrison & Foerster LLP (contained in Exhibit 5.1).
24.1 Power of Attorney (see signature page of this Registration Statement).
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:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities 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.
Notwithstanding
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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 registered) 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 this
Registration Statement or any material change to such information
in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(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 that are incorporated
by reference in this 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 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 upon the
termination of the Interactive Network, Inc. 1999 Stock Incentive
Plan.
(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 an employee benefit
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 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
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the indemnity provisions summarized
in Item 6 above 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 Securities Act and will be governed by
the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Belmont, State of California, on February 22, 2000.
INTERACTIVE NETWORK, INC.
By: /s/ Bruce W. Bauer
-----------------------
Bruce W. Bauer
President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Bruce W. Bauer, with full power to act alone, as
his or her true and lawful attorney-in-fact, with the power of substitution, for
and in such person's name, place and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto each said attorney-in-fact full power and authority to
do and perform each and every act and thing requisite and necessary to be done
as fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that each said attorney-in-fact 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 indicated:
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Bruce W. Bauer Chairman of the February 18, 2000
- -----------------------------
Bruce W. Bauer Board of Directors,
Chief Executive
Officer and President
(Principal Executive Officer)
/s/ John J. Bohrer Director, Secretary February 18, 2000
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John J. Bohrer and Treasurer
(Principal Financial and
Accounting Officer)
/s/ William H. Green Director February 21, 2000
- -----------------------------
William H. Green
/s/ William L. Groeneveld Director February 22, 2000
- -----------------------------
William L. Groeneveld
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
4.1 Amended and Restated Articles of Incorporation of the Registrant
(incorporated by reference to Exhibit 4.1 to the Registrant's Form S-8
Registration Statement, as filed with the Commission on November 10,
1992).
4.2 Certificate of Determination of the Registrant, filed with the
California Secretary of State on September 20, 1994 (incorporated by
reference to Exhibit 3.3 to the Registrant's Form 8-K Report, as filed
with the Commission on October 3, 1994).
4.3 Certificate of Amendment of Amended and Restated Articles of
Incorporation of Registrant, dated May 22, 1995 (incorporated by
reference to Exhibit 3.3 of the Registrant's Form 10-K Annual Report,
as filed with the Commission on March 30, 1999).
4.4 Bylaws of the Registrant, as amended (incorporated by reference to
Exhibit 4.2 to the Registrant's Form S-8 Registration Statement, as
filed with the Commission on November 10, 1992).
4.5 Amendment to By-laws of the Registrant, dated February 26, 1999
(incorporated by reference to Exhibit 3.4(b) of the Registrant's Form
10-K Annual Report, as filed with the Commission on March 30, 1999).
5.1 Opinion of Morrison & Foerster LLP.
23.1 Consent of KPMG LLP, Independent Public Accountants.
23.2 Consent of Morrison & Foerster LLP (contained in Exhibit 5.1).
24.1 Power of Attorney (see signature page of this Registration Statement).
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Exhibit 5.1
MORRISON & FOERSTER LLP
San Francisco, California
March 9, 2000
Interactive Network, Inc.
1161 Old County Road
Belmont, California 94002
Gentlemen:
At your request, we have examined the Registration Statement on Form S-8
executed by you on February 18, 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 an aggregate of 3,650,000 shares of your
common stock, no par value (the "Common Stock"), which will be issuable under
your 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
authorization of the issuance of 3,650,000 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 consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/S/ MORRISON & FOERSTER LLP
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Exhibit 23.1
Consent of KPMG LLP
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Interactive Network Inc.
We consent to the Incorporation by reference in the registration statements on
Form S-8, dated March 14, 2000 of Interactive Network, Inc. of our report dated
March 5, 1999, with respect to the consolidated balance sheets of Interactive
Networks, Inc. and subsidiary as of December 31, 1997 and 1998, and the related
consolidated statements of operations, shareholders' deficit, and cash flows for
each of the years in the three-year period ended December 31, 1998 which report
appears in the Form 10-k of Interactive Network, Inc. dated March 30, 1999.
/s/ KPMG LLP
Mountain View, California.
March 10, 2000
