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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PFSWEB, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 75-2837058
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
500 NORTH CENTRAL EXPRESSWAY, PLANO, TEXAS 75074
(Address of principal executive offices) (Zip Code)
2000 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
MARK C. LAYTON
PFSWEB, INC.
500 NORTH CENTRAL EXPRESSWAY
PLANO, TEXAS 75074
(Name and address of agent for service)
(972) 881-2900
(Telephone number, including area code of agent for service)
copy to:
MORRIS BIENENFELD, ESQ.
WOLFF & SAMSON
5 BECKER FARM ROAD
ROSELAND, NJ 07068
(973) 533-6532
CALCULATION OF REGISTRATION FEE
<Table>
<Caption>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered (1) Per Share (2) Price (2) Fee (2)
- ---------------------------------------------------------------------------------
Common Stock, 1,750,000 $0.91 $1,592,500 $380.61
par value $.001
per share
</Table>
- ----------
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement also covers such
additional shares as may hereafter be offered or issued to prevent
dilution resulting from stock splits, stock dividends or similar
transactions.
(2) The aggregate offering price and the registration fee have been
computed pursuant to Rule 457 under the Securities Act upon the basis
of $0.91 per share, being the average of high and low prices of Common
Stock reported on the Nasdaq National Market on December 17, 2001.
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PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
March 31, 2001.
2. All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since March 31, 2001.
3. The description of the Company's common stock, par value $.001 per
share, contained in the Company's Registration Statement on Form 8-A dated
November 24, 1999 as filed with the Commission (File No. 000-28275).
All documents filed by the Company after the date hereof pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (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 incorporated by reference
herein 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
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is organized under the laws of the State of Delaware. The
Delaware General Corporation Law, as amended (the "Act"), provides that a
Delaware corporation has the power generally to indemnify its directors,
officers, employees and other agents (each, a "Corporate Agent") against
expenses and liabilities (including amounts paid in settlement) in connection
with any proceeding involving such person by reason of his being a Corporate
Agent, other than a proceeding by or in the right of the corporation, if such
person 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 proceeding, such person had no reasonable cause to believe his conduct
was unlawful. In the case of an action brought by or in the right of the
corporation, indemnification of a Corporate Agent against expenses is permitted
if such person acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the corporation, however, no
indemnification is permitted 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 of Chancery or the court in which
such proceeding was brought shall determine upon application that despite the
adjudication of liability, but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to such indemnification. To the
extent that a Corporate Agent has been successful on the merits of such
proceeding, whether or not by or in the right of the corporation, or in the
defense of any claim, issue or matter therein, the corporation is required to
indemnify the Corporate Agent for expenses in connection therewith. Expenses
incurred by a Corporate Agent in connection with a proceeding may, under certain
circumstances, be paid by the corporation in advance of the final disposition of
the proceeding as authorized by the board of directors. The power to indemnify
and advance expenses under the Act does not exclude other rights to which a
Corporate Agent may be entitled to under the certificate of incorporation,
bylaws, agreement, vote of stockholders or disinterested directors or otherwise.
Under the Act, a Delaware corporation has the power to purchase and
maintain insurance on behalf of any Corporate Agent against any liabilities
asserted against and incurred by him in such capacity, whether or not the
corporation has the power to indemnify him against such liabilities under the
Act.
As permitted by the Act, the Company's Certificate of Incorporation
contains provisions which limit the personal liability of directors for monetary
damages for breach of fiduciary duties as directors except to the extent such
limitation of liability is prohibited by the Act. In accordance with the Act,
these provisions do not limit the liability of any director for any breach of
the
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director's duty of loyalty to the Company or its stockholders; for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, for certain unlawful payments of dividends or stock
repurchases under Section 174 of the Act; or for any transaction from which the
director derives an improper personal benefit. These provisions do not limit the
rights of the Company or any stockholder to seek an injunction or any other
non-monetary relief in the event of a breach of a director's fiduciary duty. In
addition, these provisions apply only to claims against a director arising out
of his role as a director and do not relieve a director from liability for
violations of statutory law, such as certain liabilities imposed on a director
under the federal securities laws.
In addition, the Company's Certificate of Incorporation and By-laws
provide for the indemnification of Corporate Agents for certain expenses,
judgments, fines and payments incurred by them in connection with the defense or
settlement of claims asserted against them in their capacities as Corporate
Agents to the fullest extent authorized by the Act. The Company seeks to limit
its exposure to liability for indemnification of directors and officers by
purchasing directors and officers liability insurance coverage.
Reference is made to Sections 102(b)(7) and 145 of the Act in
connection with the above summary of indemnification, insurance and limitation
of liability.
The purpose of these provisions is to assist the Company in retaining
qualified individuals to serve as officers, directors or other Corporate Agents
of the Company by limiting their exposure to personal liability for serving as
such.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
The following are filed as exhibits to this registration statement.
Exhibit Description
- ------- ------------
5 Opinion of Wolff & Samson, Counsel to the Company
23.1 Consent of KPMG LLP
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Wolff & Samson (included in Exhibit No. 5)
24 Power of Attorney (included on the signature page)
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 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.
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 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 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 any employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this registration statement relating to the
securities offered therein, and the offering of such securities at the 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
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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 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
THE REGISTRANT
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 Plano, State of Texas on December 18, 2001.
PFSWEB, INC.
By: /s/ Thomas J. Madden
------------------------------------------
Thomas J. Madden, Executive Vice President
Each person whose signature to this Registration Statement appears
below hereby appoints Thomas J. Madden and Harvey Achatz, or either of them, as
his attorney-in-fact to sign on his behalf individually and in the capacity
stated below and to file all amendments and post-effective amendments to this
Registration Statement, and any and all instruments or documents filed as a part
of or in connection with this Registration Statement or the amendments thereto,
and the attorney-in-fact, or either of them, may make such changes and additions
to this Registration Statement as the attorney-in-fact, or either of them, may
deem necessary or appropriate.
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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.
<Table>
<Caption>
Signature Title Date
- --------- ----- ----
By: /s/ Mark C. Layton Chairman of the December 18, 2001
---------------------- Board, President, and
Mark C. Layton Chief Executive
Officer (Principal
Executive Officer)
By:/s/ Thomas J. Madden Executive Vice December 18, 2001
----------------------- President, Chief
Thomas J. Madden Financial Officer and
Chief Accounting
Officer (Principal
Financial Officer and
Principal Accounting Officer)
By: /s/ David I. Beatson Director December 18, 2001
----------------------
David I. Beatson
By: /s/ Timothy M. Murray Director December 18, 2001
----------------------
Timothy M. Murray
By: /s/ James R. Reilly Director December 18, 2001
----------------------
James R. Reilly
By: /s/ Dr. Neil Jacobs Director December 18, 2001
----------------------
Dr. Neil Jacobs
</Table>
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EXHIBIT INDEX
<Table>
<Caption>
Exhibit
Page Description
- ------- -----------
5 Opinion of Wolff & Samson, Counsel to the Company
23.1 Consent of KPMG LLP
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Wolff & Samson (included in Exhibit No. 5)
24 Power of Attorney (included on the signature page)
</Table>
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