Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EBIZ ENTERPRISES, INC.
(Exact name of registrant as specified in its charter)
Nevada 84-1075269
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
13715 Murphy Road, Suite D
Stafford, Texas 77477
(Address, including Zip Code, of Registrant's Principal Executive Offices)
EBIZ ENTERPRISES, INC.
2002 STOCK OPTION PLAN
(Full Title of the Plan)
Name, Address and Telephone Copy of communications to:
Number of Agent for Service:
Bruce Parsons Jeffrey Perry
Chief Executive Officer General Counsel
Ebiz Enterprises, Inc. Ebiz Enterprises, Inc.
13715 Murphy Road, Suite D 8930 E. Raintree Drive, Suite 300
Stafford, Texas 77477 Scottsdale, Arizona 85260
Phone: (281) 403-8500 Phone: (480) 346-2014
Fax: (281) 403-8591 Fax: (480) 346-3000
CALCULATION OF REGISTRATION FEE
=============================================================================================================================
Title of Proposed Maximum
Securities To Proposed Amount Offering Price Maximum Aggregate Amount of
Be Registered To Be Registered (1) Per Share (2) Offering Price (2) Registration Fee
- -----------------------------------------------------------------------------------------------------------------------------
Common Stock, Par Value $.001 Per Share 775,000 $.11 $85,250 $7.84
=============================================================================================================================
- ----------
(1) Pursuant to Rule 416(a), also registered hereunder is an indeterminate
number of shares of Common Stock issuable as a result of the changes in
capitalization provision 12(a)of the Ebiz Enterprises, Inc. 2002 Stock
Option Plan (the "Plan").
(2) Calculated pursuant to Rule 457(h) under the Securities Act, solely for the
purpose of computing the registration fee and, based on the average of the
high and low price of the Registrant's Common Stock on the Over the Counter
Bullentin Board of January 30, 2003.
TABLE OF CONTENTS
PART I ...................................................................... 1
PART II ..................................................................... 1
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE ............................. 1
ITEM 4. DESCRIPTION OF SECURITIES ........................................... 1
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL .............................. 1
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS ........................... 2
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED ................................. 3
ITEM 8. EXHIBITS ............................................................ 3
ITEM 9. UNDERTAKINGS ........................................................ 4
SIGNATURES .................................................................. 5
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I, Items 1 and
2, will be delivered to the participants in accordance with Form S-8 and Rule
428 under the Securities Act of 1933, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents we have previously filed with the Securities and
Exchange Commission are incorporated by reference into this Registration
Statement by reference:
* Annual Report on Form 10-KSB for the year ended June 30, 2002;
* Quarterly Report on Form 10-QSB for the period ended September 30,
2002;
* The description of our common stock contained in our Registration
Statement on Form 10-SB filed on October 19, 1999, including any
amendments or reports filed for the purpose of updating the
description.
All documents we file with the Securities and Exchange Commission pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, subsequent to the
filing date of this registration statement and prior to the filing of a
post-effective amendment to this Registration Statement 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 filing 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 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.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS
With regard to directors, officers and controlling persons (who are
employees, agents or representatives of the corporation in certain specified
capacities), our Articles of Incorporation and Bylaws require us to provide
indemnification to the fullest extent permitted under Nevada law. Our Articles
of Incorporation allow for indemnification to the fullest extent permitted by
the provisions of Section 78.751 of the Nevada Revised Statutes. That section
provides for discretionary indemnification of a director, officer, employee or
agent where action was taken in good faith and in a manner reasonably believed
to be in or not opposed to the best interests of the corporation. Any
discretionary indemnification may be made only as authorized in the specific
case upon a determination that it is proper under the circumstances. The
determination must be made (i) by the stockholders, (ii) by the board of
directors by a majority vote of a quorum consisting of directors who were not
parties to the action, suit or proceeding, (iii) if a majority vote of a quorum
consisting of directors who were not parties to the action, suit or proceeding
so orders, by independent legal counsel in a written opinion, or (iv) if a
quorum consisting of directors who were not parties to the action, suit or
proceeding cannot be obtained, by independent legal counsel in a written
opinion.
We have in effect an insurance policy providing directors and officers with
indemnification, subject to certain exclusions and to the extent not otherwise
indemnified by us, against loss (including expenses incurred in the defense of
actions, suits or proceedings in connection therewith) arising from any
negligent act, error, omission or breach of duty while acting in their capacity
as our directors and officers. The policy also reimburses us for liability
incurred in the indemnification of our directors and officers.
Summary of Nevada Law. The following is a summary of the indemnification
provisions of Nevada law.
Scope: Discretionary Indemnification. A corporation is permitted to provide
indemnification to directors, officers, employees and agents against expenses,
including attorney fees, judgments, fines and amounts paid in settlement
actually and reasonable incurred in connection with any action, suit or
proceeding, except an action brought by or in the right of the corporation, if
the person acted in good faith and in a manner which 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.
If an action or suit is brought by or in the right of the corporation, the
person may be indemnified by the corporation only against expenses, including
amounts paid in settlement and attorneys fees actually and reasonably incurred
by him in connection with the defense or settlement of the action or suit.
Indemnification may not be made where he is found by a court of competent
jurisdiction, after exhaustion of all appeals, to be liable to the corporation
or for amounts paid in settlement to the corporation, unless and only to the
extent that the court determines that in view of the circumstances, the person
is fairly and reasonable entitled to indemnity for such expenses as the court
deems proper.
Procedure for Indemnification. Discretionary indemnification may be made
only as authorized in a specific case based upon a determination that
indemnification is proper in the circumstances. The determination must be made
(i) by the stockholders; (ii) by the board of directors by a majority vote of a
quorum consisting of directors who were not parties to the action, suit or
proceeding; (iii) if a majority vote of a quorum consisting of directors who
were not parties to the action, suit or proceeding so orders, by independent
legal counsel in a written opinion; or (iv) if a quorum consisting of directors
who were not parties to the action, suit or proceeding cannot be obtained, by
independent legal counsel in a written opinion.
Advancement of Expenses. Through its articles of incorporation, its bylaws
or by an agreement, the corporation may also provide that expenses incurred by a
director or officer in defending a civil or criminal action, suit or proceeding
must be paid as they are incurred and in advance of final disposition, where a
court of competent jurisdiction has determined no entitlement to
indemnification. With certain exceptions, indemnification may not be made if a
final adjudication establishes that his acts or omissions involved intentional
misconduct, fraud or a knowing violation of the law and was material to the
cause of action.
2
Mandatory Indemnification. Indemnification for expenses, including
attorneys' fees, actually and reasonably incurred by a director, officer,
employee or agent of a corporation in connection with a defense that has been
successful on the merits or otherwise in defense of any action, suit or
proceeding set forth under the "Discretionary Indemnification" discussion set
forth above, shall be made by the corporation.
Insurance. Nevada law allows a corporation to purchase and maintain
insurance or make other financial arrangements on behalf of any person who is or
was a director, officer, employee or agent of the corporation for any liability
asserted against such person and liability and expenses incurred by such person
in such a capacity as a director, officer, employee or agent or arising out of
his status as such, whether or not the corporation has the authority to
indemnify him against such liability and expenses. In addition, a corporation
may make other financial arrangements to protect these individuals including (i)
creation of a trust fund, (ii) establishment of a program of self-insurance,
(iii) securing of its obligation of indemnification by granting a security
interest or other lien on any assets of the corporation, (iv) establishment of a
letter of credit, guaranty or surety. However, no such other financial
arrangement may provide protection for an adjudged finding of liability for
intentional misconduct, fraud or a knowing violation of law.
Standard of Care. In general under Nevada law, the fiduciary obligation of
a director seems to only involve a duty of loyalty. Directors must only act in
good faith towards the best interests of the corporation.
Limitation of Liability of Directors and Officers. Under Nevada law
directors and officers are liable only for acts or omissions involving either
intentional misconduct, fraud, or a knowing violation of the law or the payment
of improper distributions. A limitation of liability statement may exculpate
directors for breach of a duty of loyalty, acts not in good faith and receiving
improper benefits.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable
ITEM 8. EXHIBITS
EXHIBITS DESCRIPTION
-------- -----------
4.1 -- Ebiz Enterprises, Inc. 2002 Stock Option Plan
(filed herewith).
4.2 -- Specimen Certificate for Shares of Common Stock, par value
$.001 per share. (Incorporated by reference from Ebiz
Enterprises, Inc. Registration Statement filed October 19,
1999).
5.1 -- Opinion of Snell & Wilmer L.L.P. with respect to legality of
securities (filed herewith).
23.1 -- Consent of Semple & Cooper LLP (filed herewith).
23.2 -- Consent of Snell & Wilmer, L.L.P. (included in Exhibit 5).
24.1 -- Powers of Attorney (included on signature page).
3
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-effect 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 with the Commission pursuant to Rule 424(b) 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 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 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 15(d) of the Securities
Exchange Act of 1934 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.
Insofar as indemnification for liabilities arising out of the Securities
Act of 1933 may be permitted to our directors, officers and controlling persons
pursuant to the foregoing provisions, we have been informed that in the opinion
of the Commission such indemnification is against public policy as expressed in
the Securities Act of 1933, and is, therefore unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by us
of expenses incurred or paid by one of our directors, officers or controlling
persons 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, we will, unless in the opinion of our counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by us is
against public policy as expressed in the Securities Act of 1933, and will be
governed by the final adjudication of such issue.
4
SIGNATURES
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 Stafford, State of Texas, on February 4, 2003.
EBIZ ENTERPRISES, INC.
By: /s/ Bruce Parsons
------------------------------------
Bruce Parsons, President & Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Bruce Parsons, and each of them, either of whom
may act without joinder of the other, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any or all amendments
to this Registration Statement, and to file the same, with all exhibits thereto
and other documents in connection therewith, with the Commission, granting unto
such 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 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 said
attorneys-in-fact and agents, and each of them, or the substitute or substitutes
of either of them, 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
- --------- ----- ----
/s/ Bruce Parsons Chief Executive Officer February 4, 2003
- ------------------------ (Principal Executive Officer
Bruce Parsons and Chairman of the Board)
/s/ Mike Colesante Chief Financial Officer and February 4, 2003
- ------------------------ Treasurer (Principal Financial
Mike Colesante and Accounting Officer)
/s/ Darcy Mott Director February 4, 2003
- ------------------------
Darcy Mott
/s/ Dan Baker Director February 4, 2003
- ------------------------
Dan Baker
/s/ Allan Smart Director February 4, 2003
- ------------------------
Allan Smart
/s/ Steve Scronic Director February 4, 2003
- ------------------------
Steve Scronic
5
INDEX TO EXHIBITS
EXHIBITS DESCRIPTION
-------- -----------
4.1 -- Ebiz Enterprises, Inc. 2002 Stock Option Plan
(filed herewith).
4.2 -- Specimen Certificate for Shares of Common Stock, par value
$.001 per share. (Incorporated by reference from Ebiz
Enterprises, Inc. Registration Statement filed October 19,
1999).
5.1 -- Opinion of Snell & Wilmer L.L.P. with respect to legality of
securities (filed herewith).
23.1 -- Consent of Semple & Cooper LLP (filed herewith).
23.2 -- Consent of Snell & Wilmer, L.L.P. (included in Exhibit 5).
24.1 -- Powers of Attorney (included on signature page).