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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 27, 1997
REGISTRATION NO. 333-
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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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INTERACTIVE GROUP, INC.
(Exact name of Registrant as specified in its charter)
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Delaware 95-2925769
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
5095 Murphy Canyon Road
San Diego, California 92123
(619) 560-8525
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
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EMPLOYEE STOCK PURCHASE PLAN
1997 NONSTATUTORY STOCK OPTION PLAN
(Full title of the plans)
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Mark Hellinger
President, Chief Operating Officer and
Chief Financial Officer
INTERACTIVE GROUP, INC.
5095 Murphy Canyon Road
San Diego, California 92123
(619) 560-8525
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
D. Bradley Peck, Esq.
Lance W. Bridges, Esq.
COOLEY GODWARD LLP
4365 Executive Drive
San Diego, CA 92121
(619) 550-6000
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
OFFERING PRICE AGGREGATE
TITLE OF EACH CLASS OF AMOUNT TO PER SHARE(1) OFFERING PRICE(1) AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED REGISTRATION FEE
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Common Stock, $.001 par value 350,000 $6.16 $2,156,000 $653.33
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(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457. The price per share and aggregate
offering price are calculated on the basis of the average of the high and
low sales price of Registrant's Common Stock on June 24, 1997 as reported
on the Nasdaq National Market System. The following chart shows the
calculation of the registration fee.
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Offering Price Aggregate
Type of Shares Number of Shares Per Share Offering Price
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Additional shares of Common Stock
issuable pursuant to the Employee 100,000 $ 6.16 $ 616,000
Stock Purchase Plan
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Common Stock issuable pursuant to
the 1997 Nonstatutory Stock Option 250,000 $ 6.16 $1,540,000
Plan
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Interactive Group, Inc. (the
"Registrant") with the Securities and Exchange Commission are incorporated by
reference into this Registration Statement:
a) The Registrant's latest annual report on Form 10-K filed
pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or either (1) the Registrant's latest prospectus
filed pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the
"Securities Act"), that contains audited consolidated financial statements for
the Registrant's latest fiscal year for which such statements have been filed,
or (2) the Registrant's effective registration statement on Form 10 or 20-F
filed under the Exchange Act containing audited consolidated financial
statements for the Registrant's latest fiscal year.
b) All other reports filed pursuant to Sections 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by the annual
reports, the prospectus or the registration statement referred to in (a) above.
c) The description of the Registrant's Common Stock which is
contained in a registration statement filed under the Exchange Act, including
any amendment or report filed for the purpose of updating such description.
All documents filed by the Registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement 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 into this Registration Statement and to be a part hereof from the date
of filing of such documents. Any statement contained in a document 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 other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
Incorporation by Reference of Contents of Registration Statement on
Form S-8 No. 333-290. The contents of the Registration Statement on Form S-8 No.
333-290 filed with
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the Securities and Exchange Commission on January 16, 1996 is incorporated by
reference herein.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the Delaware General Corporation Law (the
"Delaware Law"), the Registrant has broad powers to indemnify its directors and
officers against liabilities they may incur in such capacities, including
liabilities under the Securities Act.
The Registrant's Certificate of Incorporation and Bylaws include
provisions to (i) eliminate the personal liability of its directors for monetary
damages resulting from breaches of their fiduciary duty to the extent permitted
by Section 102(b)(7) of the Delaware Law and (ii) require the Registrant to
indemnify its directors and officers to the fullest extent permitted by Section
145 of the Delaware Law, including circumstances in which indemnification is
otherwise discretionary. Pursuant to Section 145 of the Delaware law, a
corporation generally has the power to indemnify its present and former
directors, officers, employees and agents against expenses incurred by them in
connection with any suit to which they are, or are threatened to be made, a
party by reason of their serving in such positions so long as they acted in good
faith and in a manner they reasonably believed to be in, or not opposed to, the
best interests of the corporation, and with respect to any criminal action, they
had no reasonable cause to believe their conduct was unlawful. The Registrant
believes that these provisions are necessary to attract and retain qualified
persons as directors and officers. These provisions do not eliminate the
directors' duty of care, and, in appropriate circumstances, equitable remedies
such as injunctive or other forms of non-monetary relief will remain available
under Delaware Law. In addition, each director will continue to be subject to
liability for breach of the director's duty of loyalty to the Registrant, for
acts or omissions not in good faith or involving intentional misconduct, for
knowing violations of law, for acts or omissions that the director believes to
be contrary to the best interests of the Registrant or its stockholders, for any
transaction from which the director derived an improper personal benefit, for
acts or omissions involving a reckless disregard for the director' s duty to the
Registrant or its stockholders when the director was aware or should have been
aware of a risk of serious injury to the Registrant or its stockholders, for
acts or omissions that constitute an unexcused pattern of inattention that
amounts to an abdication of the
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director's duty to the Registrant or its stockholders, for improper transactions
between the director and the Registrant and for improper distributions to
stockholders and loans to directors and officers. The provision also does not
affect a director's responsibilities under any other law, such as the federal
securities law or state or federal environmental laws.
The Registrant has entered into indemnity agreements with each of its
directors and executive officers that require the Registrant to indemnify such
persons against expenses, judgments, fines, settlements and other amounts
incurred (including expenses of a 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 an
executive 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
conduct was unlawful. The indemnification agreements also set forth certain
procedures that will apply in the event of a claim for indemnification
thereunder.
At present, there is no pending litigation or proceeding involving a
director or officer of the Registrant as to which indemnification is being
sought nor is the Registrant aware of any threatened litigation that may result
in claims for indemnification by any officer or director.
The Registrant has an insurance policy covering the officers and
directors of the Registrant with respect to certain liabilities, arising under
the Securities Act or otherwise.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
Exhibit No. Description
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4.1 Registrant's Certificate of Incorporation. (1)
4.2 Registrant's Bylaws. (1)
4.3 Specimen Stock Certificate. (1)
5.1 Opinion of Cooley Godward LLP.
10.1 Employee Stock Purchase Plan, as amended on March 31, 1997.
10.2 1997 Nonstatutory Stock Option Plan.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Romito, Tomasetti & Associates, P.C.
23.3 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
24.1 Power of Attorney. Reference is made to page 7.
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(1) Filed as an exhibit to the Registration Statement on Form S-1 (No.
33-90816), and incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
(a) Rule 415 Offering.
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 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
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with the Commission pursuant to Rule 424(b) (Section 230.424(b) of this chapter)
if, in the aggregate, the changes in volume and price represent no more than a
20% 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 this
Registration Statement is on Form S-3, Form S-8 or Form F-3 and 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 herein, 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) Filings Incorporating Subsequent Exchange Act Documents By
Reference.
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.
(h) Request for Acceleration of Effective Date or Filing of
Registration Statement on Form S-8.
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
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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
The Registrant. 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 San Diego, State of California, on June 27,
1997.
INTERACTIVE GROUP, INC.
By /s/ ROBERT C. VERNON
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Robert C. Vernon
Chairman of the Board, Chief
Executive Officer and Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert C. Vernon and Mark Hellinger and
each of them, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his 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 said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or any of
them, or his substitutes or substitute, 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/ ROBERT C. VERNON Chairman of the Board, June 27, 1997
- -------------------------------- Chief Executive Officer and Secretary
Robert C. Vernon (Principal Executive Officer)
/s/ MARK HELLINGER President, Chief Operating Officer, June 27, 1997
- -------------------------------- Chief Financial Officer and Director
Mark Hellinger (Principal Financial and Accounting Officer)
/s/ LYNDOL L. COOK Director June 27, 1997
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Lyndol L. Cook
/s/ RANDOLPH S. NAYLOR Director June 27, 1997
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Randolph S. Naylor
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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4.1 Registrant's Certificate of Incorporation. *
4.2 Registrant's Bylaws. *
4.3 Specimen Stock Certificate. *
5.1 Opinion of Cooley Godward LLP.
10.1 Employee Stock Purchase Plan, as amended on March 31, 1997.
10.2 1997 Nonstatutory Stock Option Plan.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Romito, Tomasetti & Associates, P.C.
23.3 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
24.1 Power of Attorney. Reference is made to Page 7.
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* Filed as an exhibit to the Registration Statement on Form S-1 (No.
33-90816), and incorporated herein by reference.
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