As filed with the Securities and Exchange Commission on July 6, 2000
Registration No. _____
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
CYBERNET INTERNET SERVICES INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 51-0384117
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
STEFAN-GEORGE-RING 19-23
D-81929 MUNICH, GERMANY
(011-49-89-993-150)
(Address of Principal Executive Offices, Including Zip Code)
CYBERNET INTERNET SERVICES INTERNATIONAL, INC.
1998 STOCK INCENTIVE PLAN
(Full Title of the Plan)
ANDREAS EDER
CHAIRMAN OF THE BOARD OF DIRECTORS
PRESIDENT AND CHIEF EXECUTIVE OFFICER
STEFAN-GEORGE-RING 19-23
D-81929 MUNICH, GERMANY
(Name and Address of Agent for Service)
(011-49-89-993-150)
(Telephone Number, Including Area Code, of Agent for Service)
Copy to:
JOSEPH M. BERL, ESQ.
POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
1001 PENNSYLVANIA AVENUE, NW
SIXTH FLOOR
WASHINGTON, D.C. 20004
(202) 347-0066
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CALCULATION OF REGISTRATION FEE
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Proposed
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Maximum Proposed
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Amount Offering Maximum Amount of
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Title of Securities to be Price Aggregate Registration
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to be Registered Registered Per Share(1) Offering Price(1) Fee
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Common Stock, $0.001 3,000,000 $5.313 $15,939,000 $4,207.90
- ------------ ------ --------- ------ ----------- ---------
par value par value
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per share
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(1) Calculated solely for purposes of this offering pursuant to Rule 457(h)(1) of the Securities Act of
1933, as amended, on the basis of the average of the high and low prices of the Common Stock on July 3, 2000
which is within five business days prior to the date of filing.
The purpose of this Form S-8 Registration Statement is to register
3,000,000 shares of Registrant's Common Stock, $0.001 par value (the "Shares"),
for issuance under Registrant's 1998 Stock Incentive Plan (the "Plan").
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information: *
Item 2. Registrant Information and Employee Plan Annual Information*
* Pursuant to Rule 428(b)(1) under the Securities Act of 1933, as
amended (the "Securities Act"), documents containing the information
specified in Part I of Form S-8 will be sent or given to each person
resident in the United States eligible to participate in the Plan.
Such documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II of this form,
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 previously filed by the Registrant with the
Securities and Exchange Commission (the "Commission") are incorporated by
reference in this Registration Statement:
1. Registrant's Annual Report on Form 10-K (File No. 000-25677) for
the year ended December 31, 1999 filed on March 30, 2000 and
amended on May 1, 2000.
2. All reports filed by Registrant pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act")
since the end of the fiscal year ended December 31, 1999.
3. Registrant's Form 8-A (File No. 000-25677) filed pursuant to
Section 12 of the Exchange Act containing a description of the
terms, rights and provisions of the Registrant's Common Stock,
including any amendment or report filed for the purpose of
updating such description.
In addition, all documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 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 referenced in this Registration Statement and to
be a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
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, as amended,
provides that 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
proceeding, whether civil, criminal, administrative or investigative, 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 its request in such capacity in another
corporation or business association, 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.
Section 102(b)(7) of the Delaware General Corporation Law, as amended,
permits a corporation to provide in its certificate of incorporation that a
director of the corporation shall not be personally liable to the corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv)
for any transaction from which the director derived an improper personal
benefit.
Registrant's Certificate of Incorporation provides for the elimination
of personal liability of a director for breach of fiduciary duty as permitted by
Section 102(b)(7) of the Delaware General Corporation Law, and also provides
that Registrant may indemnify its directors and officers to the full extent
permitted by the Delaware General Corporation Law.
The Registrant has in effect a directors and officers liability
insurance policy under which the directors and officers of the Registrant are
insured against loss arising from claims made against them due to wrongful acts
while acting in their individual and collective capacities as directors and
officers, subject to certain exclusions.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
EXHIBIT
NUMBER EXHIBIT
------- -------
4 Instruments Defining Rights of Stockholders. Reference is
made to Registrant's Registration Statement on Form 8-A,
which is incorporated by reference in Item 3 of this
Registration Statement.
5 Opinion of Powell, Goldstein, Frazer & Murphy, LLP
re: validity of securities registered
23(a) Consent of Ernst & Young (certified public accountants)
23(b) Consent of Grant Thornton SpA (certified public
accountants)
23(c) Consent of Powell, Goldstein, Frazer & Murphy LLP
(counsel) included in Exhibit 5
24 Power of Attorney, included on signature page.
ITEM 9. UNDERTAKINGS
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made of the securities registered hereby, a post-effective
amendment to this Registrant 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 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 this 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 this Registration Statement;
provided, however, that the undertakings set forth in paragraphs (1)(i) and
(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 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 at the termination of the offering.
(b) The Registrant hereby further 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 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 foregoing provisions, 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, unless in the opinion of its counsel the matter has been
settled by controlling precedent, will 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.
SIGNATURES
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Pursuant to the requirements of the Securities Act, 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 Munich, Germany, on July 6, 2000.
CYBERNET INTERNET SERVICES
INTERNATIONAL, INC.
By: /s/ Andreas Eder
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Andreas Eder
Chairman of the Board of Directors,
President and Chief Executive Officer
POWER OF ATTORNEY
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KNOW ALL MEN BY THESE PRESENTS, that each of the persons whose signature
appears below constitutes and appoints each of Robert Fratarcangelo and Andreas
Eder, and each of them, his true and lawful attorney-in-fact and agent, each
acting alone, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to execute any and all
amendments (including post-effective amendments) to the within registration
statement, and to file the same, together with all exhibits thereto and all
other documents in connection therewith, with the Securities and Exchange
Commission and such other agencies, offices and persons as may be required by
applicable law, granting unto each said attorney-in-fact and agent, each acting
alone, full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that each said attorney-in-fact and agent, each acting alone 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
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/s/ Andreas Eder Chairman of the Board of Directors, June 19, 2000
- -------------------------- President and Chief Executive Officer
Andreas Eder (Principal Executive Officer)
/s/ Robert Fratarcangelo Director and Secretary June 18, 2000
- --------------------------
Robert Fratarcangelo
/s/ Hubert Besner Director June 16, 2000
- --------------------------
Dr. Hubert Besner
/s/ Tristan Libischer Director June 19, 2000
- --------------------------
Tristan Libischer
/s/ G.W. Norman Wareham Director June 20, 2000
- --------------------------
G. W. Norman Wareham
/s/ Paoli di Fraia Chief Financial Officer and Treasurer June 19, 2000
- -------------------------- (Principal Financial and Accounting
Paoli di Fraia Officer)
EXHIBIT INDEX
Exhibits Description Page
4 Instruments Defining Rights of Stockholders. Reference is made to Registrant's
Registration Statement on Form 8-A, which is incorporated by reference in
Item 3 of this Registration Statement
5 Opinion of Powell, Goldstein, Frazer & Murphy LLP re: validity of securities 8
registered
23 Consents of Experts and counsel:
(a) Consent of Schitag Ernst & Young (certified public accountants) 9
(b) Consent of Grant Thornton SpA (certified public accountants) 9
(c) Consent of Powell, Goldstein, Frazer & Murphy LLP (counsel): included in 9
Exhibit 5
24 Power of Attorney: included on signature page