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As filed with the Securities and Exchange Commission on September 7, 1999
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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INTERVU INC.
(Exact name of registrant as specified in its charter)
DELAWARE 33-0680870
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
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6815 FLANDERS DRIVE, SUITE 200
SAN DIEGO, CALIFORNIA 92121
(619) 350-1600
(Address of principal executive offices, including zip code, and telephone
number)
NETPODIUM INC. 1998 STOCK OPTION/STOCK ISSUANCE PLAN
(Full title of the plans)
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HARRY E. GRUBER Copies to:
CHIEF EXECUTIVE OFFICER SCOTT N. WOLFE, ESQ.
INTERVU INC. LATHAM & WATKINS
6815 FLANDERS DRIVE, SUITE 200 701 "B" STREET, SUITE 2100
SAN DIEGO, CALIFORNIA 92121 SAN DIEGO, CALIFORNIA 92101
(619) 623-8400 (619) 236-1234
(Name, address, including zip code, and
telephone number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
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Amount Proposed Maximum Proposed Maximum Amount of
Title of Securities to be Offering Price Aggregate Offering Registration
to be Registered Registered(1) Per Share Price Fee
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Common Stock, $.001 par value 192,276 $1.66(2) $319,179(2) $89.00
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(1) Pursuant to Rule 416(a), this Registration Statement shall also cover
any additional shares of the Registrant's Common Stock that become
issuable under the plans by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without receipt
of consideration that increases the number of the Registrant's
outstanding shares of Common Stock.
(2) 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 based upon the actual exercise price for shares
subject to outstanding stock options previously granted under the
Netpodium Inc. 1998 Stock Option/Stock Issuance Plan (the "Plan"). Of
the 192,276 shares of Common Stock reserved for issuance under the Plan
being registered hereunder, (i) 47,381 shares of Common Stock are
subject to outstanding options with an exercise price of $1.45 per share
and (ii) 144,895 shares of Common Stock are subject to outstanding
options with an exercise price of $1.72 per share.
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PART I
ITEM 1. PLAN INFORMATION.
Not required to be filed with this Registration Statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with this Registration Statement.
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed with the Securities and
Exchange Commission (the "Commission") by InterVU Inc., a Delaware corporation
(the "Company"), are hereby incorporated by reference in this Registration
Statement:
(a) The Annual Report on Form 10-K filed pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act") on March
30, 1999 (the "Annual Report on Form 10-K");
(b) The Quarterly Reports on Form 10-Q filed pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act")
on May 17, 1999 and August 16, 1999 (the "Quarterly Reports on
Form 10-Q");
(c) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the effective date of the Annual Report
on Form 10-K; and
(d) The description of the Company's Common Stock contained in the
Registration Statement on Form 8-A filed with the Commission on
November 12, 1997.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date this Registration Statement
is filed with the Commission 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 of it
from the respective dates of filing of 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 other
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.
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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 Company
has broad powers to indemnify its directors and officers against liabilities
they may incur in such capacities, including liabilities under the Securities
Act.
The Company's Amended and Restated Certificate of Incorporation and
Amended and Restated Bylaws provide that the Company will indemnify its
directors and officers to the fullest extent permitted by Delaware law. Delaware
law permits, but does not require, a corporation to indemnify officers,
directors, employees or agents and expressly provides that the indemnification
provided for under Delaware law shall not be deemed exclusive of any
indemnification right under any bylaw, vote of stockholders or disinterested
directors, or otherwise. Delaware law permits indemnification against expenses
and certain other liabilities arising out of legal actions brought or threatened
against such persons for their conduct on behalf of the Company, provided that
each such person acted in good faith and in a manner that he or she reasonably
believed was in or not opposed to the Company's best interests and in the case
of a criminal proceeding, had no reasonable cause to believe his or her conduct
was unlawful. Delaware law does not allow indemnification of directors in the
case of an action by or in the right of the Company (including stockholder
derivative suits) unless the directors successfully defend the action or
indemnification is ordered by the court.
The Company is a party to indemnification agreements with each of its
directors and officers. In addition, the Company maintains directors' and
officers' liability insurance covering its executive officers and directors.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Company hereby undertakes:
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(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, as amended (the "Securities
Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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. 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 and 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
this Registration Statement;
provided, however, that the undertakings set forth in paragraphs (a)(1)(i) and
(a)(1)(ii) above do not apply if the 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 Company pursuant to Section 13 or 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 undersigned Company 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 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 this 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.
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(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
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 Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company 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, the Company
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 September 7, 1999.
InterVU Inc.
By: /s/ HARRY E. GRUBER
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Harry E. Gruber
Chief Executive Officer and Chairman of
the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Harry E. Gruber his true and lawful
attorney-in-fact, acting alone, 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 Commission, hereby
ratifying and confirming all that said attorney-in-fact or his substitute, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, 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/ HARRY E. GRUBER Chairman of the Board and Chief September 7, 1999
- ------------------------------------ Executive Officer (Principal
Harry E. Gruber Executive Officer)
/s/ KENNETH L. RUGGIERO Vice President and Chief Financial September 7, 1999
- ------------------------------------ Officer (Principal Financial
Kenneth L. Ruggiero Officer and Principal Accounting
Officer)
/s/ EDWARD DAVID Director September 7, 1999
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Edward David
/s/ MARK DOWLEY Director September 7, 1999
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Mark Dowley
/s/ ALAN Z. SENTER Director September 7, 1999
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Alan Z. Senter
/s/ J. WILLIAM GRIMES Vice Chairman September 7, 1999
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J. William Grimes
/s/ ISAAC WILLIS Director September 7, 1999
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Isaac Willis
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EXHIBIT INDEX
EXHIBIT
4.1 Netpodium Inc. 1998 Stock Option/Stock Issuance Plan
5.1 Opinion of Latham & Watkins.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Latham & Watkins (included in Exhibit 5.1 hereto).
24.1 Power of Attorney (included on signature page hereto).
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