As filed with the Securities and Exchange Commission on April 22, 1999
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
ION NETWORKS, INC.
(Exact name of registrant as specified in its charter)
Delaware 22-2413505
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
21 Meridian Road, Edison, New Jersey 08820
(Address of Principal Executive Offices) (Zip Code)
1998 STOCK OPTION PLAN
(Full title of the plan)
Stephen B. Gray, President
Ion Networks, Inc.
21 Meridian Road
Edison, New Jersey 08820
(Name and address of agent for service)
(732) 494-4440
(Telephone number, including area code, of agent for service)
with a copy to:
James Alterbaum, Esq.
Parker Chapin Flattau & Klimpl, LLP
1211 Avenue of the Americas
New York, New York 10036
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
EACH CLASS AMOUNT OFFERING AGGREGATE AMOUNT OF
OF SECURITIES TO BE PRICE PER OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) SHARE (2) PRICE (2) FEE (2)
Common Stock, $.001 par value 3,000,000 $3.46875 $10,406,250 $2,892.94
- -----------------------------------------------------------------------------------------------------------------
(1) Pursuant to Rule 416(b), there shall also be deemed covered hereby all
additional securities resulting from anti-dilution adjustments under the
1998 Stock Option Plan.
(2) Estimated solely for the purpose of calculating the registration fee on
the basis of, pursuant to Rules 457(h) and 457(c), the average of the high
and low sales prices of the registrant's Common Stock on The Nasdaq Stock
Market on April 19, 1999.
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by the Company with
the Securities and Exchange Commission pursuant to Section 13(a) of the
Securities Exchange Act of 1934 (the "1934 Act") are incorporated herein by
reference:
(a) The registrant's Annual Report on Form 10-KSB for the
fiscal year ended March 31, 1998, as amended by Amendment No. 1 thereto;
(b) The registrant's Quarterly Reports on Form 10-QSB for the
fiscal quarters ended June 30, 1998, September 30, 1998 and December 31, 1998,
respectively;
(c) The registrant's Current Reports on Form 8-K filed on May
19, 1998, March 12, 1999 and April 9, 1999, respectively; and
(d) The description of the registrant's Common Stock contained
in the registrant's Registration Statement on Form S-18 (No. 2-93800-NY) filed
on October 16, 1984 under the 1934 Act, including any amendment or report filed
for the purpose of updating such descriptions.
All documents filed subsequent to the date of this
Registration Statement pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934
Act and 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 in this
Registration Statement and to be a part hereof from the date of the filing of
such documents. Any statement contained in a document incorporated or deemed to
be incorporated herein by reference 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 other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
(the "DGCL") provides, in general, that a corporation incorporated under the
laws of the State of Delaware, such as the registrant, 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 a derivative action by or in the
right of the corporation) by reason of the fact that such person 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 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. In the case of a derivative action, a Delaware corporation
may indemnify any such person against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit 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, 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 determines such person is fairly and reasonably entitled to indemnity for
such expenses.
Article Tenth of the registrant's Certificate of Incorporation states
that the Corporation shall, to the fullest extent permitted by the DGCL,
indemnify any and all persons whom it shall have power to indemnify under
Section 145 thereof from and against any and all of the expenses (including,
without limitation, attorneys' fees and expenses), liabilities or other matters
referred to in or covered by such Section, and the indemnification so provided
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 such person's official capacity and
as to action in another capacity while holding the position giving rise to the
entitlement of indemnification, 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, estate, executors and administrators of any such person.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
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ITEM 8. EXHIBITS.
Exhibit
Number Description
- ------- -----------
3.1 Certificate of Incorporation of the Company, as filed with the
Secretary of State of the State of Delaware on August 5, 1998.
3.2 Certificate of Amendment of the Certificate of Incorporation,
as filed with the Secretary of State of the State of Delaware
on December 11, 1998.
3.3 By-Laws of the Company.
4.1 Registrant's 1998 Stock Option Plan.
4.2 Registrant's 1998 U.K. Sub-Plan.
5.1 Opinion of Parker, Chapin, Flattau & Klimpl, LLP as to the
legality of the Common Stock being offered and consent.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Parker Chapin Flattau & Klimpl, LLP (included in
Exhibit 5.1).
24.1 Powers of Attorney of certain officers and directors of the
registrant (included in signature page).
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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;
(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) 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 by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
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 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.
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 Securities Exchange Act of 1934 that is incorporated by reference
in this 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 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 provisions described under Item 6
above, or otherwise, the registrant has been advised that in the opinion of the
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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.
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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 Town of Edison, State of New Jersey, on the 19th day of
April, 1999.
ION NETWORKS, INC.
By: /s/ Stephen B. Gray
----------------------------------------
Stephen B. Gray, President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints each of Stephen B. Gray and John F.
McTigue and each of them with power of substitution, as his attorney-in-fact, in
all capacities, to sign any amendments to this registration statement (including
post-effective amendments) and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that said attorney-in-facts or their
substitutes may 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 below by the following persons in the
capacities indicated on the 19th day of April, 1999.
Signature Title
--------- -----
/s/ Stephen B. Gray President, Chief Executive Officer, Chief Operating
- ------------------------ Officer and Director
Stephen B. Gray
/s/ Stephen M. Deixler Chairman of the Board of Directors
- ------------------------
Stephen M. Deixler
/s/ John F. McTigue Chief Financial Officer and Treasurer (Principal
- ------------------------ Financial Officer and Principal Accounting Officer)
John F. McTigue
/s/ Michael Radomsky Executive Vice President, Secretary and Director
- ------------------------
Michael Radomsky
/s/ Alexander C. Stark Director
- ------------------------
Alexander C. Stark
/s/ Martin Ritchie Director
- ------------------------
Martin Ritchie
/s/ Alan Hardie Director
- ------------------------
Alan Hardie
EXHIBIT INDEX
Exhibit
Number Description
- ------- -----------
3.1 Certificate of Incorporation of the Company, as filed with the
Secretary of State of the State of Delaware on August 5, 1998.
3.2 Certificate of Amendment of the Certificate of Incorporation,
as filed with the Secretary of State of the State of Delaware
on December 11, 1998.
3.3 By-Laws of the Company.
4.1 Registrant's 1998 Stock Option Plan.
4.2 Registrant's 1998 U.K. Sub-Plan.
5.1 Opinion of Parker, Chapin, Flattau & Klimpl, LLP as to the
legality of the Common Stock being offered and consent.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Parker Chapin Flattau & Klimpl, LLP (included in
Exhibit 5.1).
24.1 Powers of Attorney of certain officers and directors of the
registrant (included in signature page).