As filed with the Securities and Exchange Commission on February 12, 2002
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8/A
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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iBIZ TECHNOLOGY CORP.
(Exact name of registrant as specified in its charter)
Florida 86-0933890
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
1919 West Lone Cactus Drive
Phoenix, Arizona 85021
(Address of principal executive offices) (Zip Code)
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Kenneth Schilling, President
1919 West Lone Cactus Drive
Phoenix, Arizona 85021
(Name and address of agent for service)
(623) 492-9200
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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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
---------- ----------- ------------ ---------- -----------
Common Stock 60,520,418 $0.01 $605,204.18 $144.64
$.001 par value per share
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 2002 Stock Incentive Plan,
by reason of any stock dividend, stock split, recapitalization or other
similar transaction effected without the receipt of consideration which
results in an increase in the number of the outstanding shares of
Common Stock of iBIZ Technology Corp.
(2) Calculated solely for purposes of this offering under Rule 457(h) of
the Securities Act of 1933, as amended, on the basis of the average of
the high and low selling prices per share of Common Stock of iBIZ
Technology Corp. on January 4, 2002.
EXPLANATORY NOTE
This Amendment is being filed to correct a Selling Shareholder's name. The
Prospectus filed as part of this Registration Statement has been prepared in
accordance with the requirements of Form S-3 and may be used for reofferings and
resales of registered shares of common stock which have been issued upon the
grants of common stock to employees, non-employee directors and consultants of
iBIZ Technology Corp.
2
Prospectus
iBIZ TECHNOLOGY CORP.
60,520,418 SHARES OF COMMON STOCK
issued pursuant to the
2002 STOCK INCENTIVE PLAN
This prospectus relates to the sale of up to 60,520,418 shares of
common stock of iBIZ Technology Corp. offered by certain holders of our
securities acquired upon the exercise of options issued to such persons pursuant
to our 2002 Stock Incentive Plan. The shares may be offered by the selling
stockholders from time to time in regular brokerage transactions, in
transactions directly with market makers or in certain privately negotiated
transactions. For additional information on the methods of sale, you should
refer to the section entitled "Plan of Distribution." We will not receive any of
the proceeds from the sale of the shares by the selling stockholders. Each of
the selling stockholders may be deemed to be an "underwriter," as such term is
defined in the Securities Act of 1933.
Our common stock trades on the Over-The-Counter Bulletin Board under
the symbol "iBIZ." On January 4, 2002, the closing sale price of the common
stock was $0.01 per share. The securities offered hereby are speculative and
involve a high degree of risk and substantial dilution. Only investors who can
bear the risk of loss of their entire investment should invest. See "Risk
Factors" beginning on page 6.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is January 7, 2002.
3
TABLE OF CONTENTS
Page
Prospectus Summary 5
Risk Factors 6
Selling Stockholders 10
Plan of Distribution 12
Interests of Named Experts and Counsel 13
Incorporation of Certain Documents by Reference 13
Disclosure of Commission Position on Indemnification For Securities Act Liabilities 13
Available Information 14
4
Prospectus Summary
General Overview
iBIZ is primarily engaged in the distribution of personal digital
assistant accessories, but also provides many other goods and services. Founded
in 1979 by our President Ken Schilling, iBIZ has been in the computer industry
for over twenty years.
Our principal offices are located at 1919 West Lone Cactus Drive,
Phoenix, Arizona 85021, and our telephone number is (623) 492-9200. Our web site
is located at www.iBIZcorp.com. iBIZ was formed under the laws of the state of
Florida.
This Offering
Shares of common stock outstanding prior to this offering.......................107,006,500
Shares offered in this prospectus............................................... 60,520,418
Total shares outstanding after this offering....................................167,526,918
Use of proceeds................. We will not receive any proceeds
from the sale of the shares of
common stock offered in this
prospectus.
Other Concurrent Offerings
In addition to the shares of common stock offered by this prospectus,
we have other prospectuses which, in the aggregate, offer up to 300,000,000
shares of common stock.
5
Risk Factors
Investment in our common stock involves a high degree of risk. You
should consider the following discussion of risks as well as other information
in this prospectus. The risks and uncertainties described below are not the only
ones. Additional risks and uncertainties not presently known to us or that we
currently deem immaterial also may impair our business operations. If any of the
following risks actually occur, our business could be harmed. In such case, the
trading price of our common stock could decline.
Except for historical information, the information contained in our SEC
prospectuses are "forward-looking" statements about our expected future business
and performance. Our actual operating results and financial performance may
prove to be very different from what we might have predicted as of the date of
this prospectus.
We Have A History Of Losses and Anticipate Future Losses Which will
Compel us to Seek Additional Capital
For the fiscal year ended October 31, 1999, we sustained a loss before
other income (expense) of approximately $1,074,180 and for the fiscal year ended
October 31, 2000, we sustained a loss before other income (expense) of
$3,570,789. Future losses are anticipated to occur. We continue to have
insufficient cash flow to grow operations and we cannot assure you that we will
be successful in reaching or maintaining profitable operations.
Since December 1, 1999, we have raised approximately $6,549,723 through
the sale of convertible debentures, convertible notes, common stock and warrants
to various investors. If we are unable to raise additional funds when necessary,
we may have to reduce planned expenditures, scale back our product developments,
sales or other operations, lay-off employees and enter into financing
arrangements on terms that we would not otherwise accept or be forced into
insolvency.
We Have a Limited Product Range Which Must be Expanded in Order to
Effectively Compete
To effectively compete in our industry, we need to continue to expand
our business and generate greater revenues so that we have the resources to
timely develop new products. We must continue to market our products and
services through our direct sales force and expand our e-commerce distribution
channels. At the present time, we have no other products in the development
process. We cannot assure you that we will be able to grow sufficiently to
provide the range and quality of products and services required to compete.
We Have Few Proprietary Rights, the Lack of Which May Make it Easier
for our Competitors to Compete Against Us.
We attempt to protect our limited proprietary property through
copyright, trademark, trade secret, nondisclosure and confidentiality measures.
Such protections, however, may not preclude competitors from developing similar
technologies.
"Penny Stock" regulations may impose certain restrictions on
marketability of our stock, which may affect the ability of holders of our
common stock to sell their shares.
The Securities and Exchange Commission has adopted regulations that
generally define a "penny stock" to be any equity security that has a market
price of less than $5.00 per share. Our common stock is currently subject to
these rules that impose additional sales practice requirements. For transactions
covered by these rules, the broker-dealer must make a special suitability
determination for the purchase of the common shares and must have received the
purchaser's written consent to the transaction prior to the purchase. The "penny
stock" rules also require the delivery, prior to the transaction, of a risk
disclosure document mandated by the SEC relating to the penny stock market. The
broker-dealer must also disclose:
o the commission payable to both the broker-dealer and the registered
representative,
o current quotations for the securities, and
o if the broker-dealer is the sole market maker, the
broker-dealer must disclose this fact and the broker-dealer's
presumed control over the market.
6
Finally, monthly statements must be sent disclosing recent price
information for the penny stock held in the account and information on the
limited market in penny stocks.
These rules apply to sales by broker-dealers to persons other than
established customers and accredited investors (generally those with assets in
excess of $1,000,000 or annual income exceeding $200,000, or $300,000 together
with their spouse), unless our common shares trade above $5.00 per share.
Consequently, the "penny stock" rules may restrict the ability of broker-dealers
to sell our common shares, and may affect the ability to sell the common shares
in the secondary market as well as the price at which such sales can be made.
Also, some brokerage firms will decide not to effect transactions in "penny
stocks" and it is unlikely that any bank or financial institution will accept
"penny stock" as collateral.
If we are required for any reason to repay the $649,723 of convertible
notes we issued from June 2001 through October 2001, we would be required to
deplete our working capital, if available, or raise additional funds. Our
failure to repay the convertible notes, if required, could result in legal
action against us, which could require the sale of substantial assets.
In June, July, August and October 2001, we issued $649,723 principal
amount of convertible notes. The convertible notes are due and payable, with 8%
interest, in June, July, August and October 2002, respectively, unless sooner
converted into shares of our common stock. In addition, any event of default as
described in the convertible notes could require the early repayment of the
convertible notes, including a default interest rate of 20% on the outstanding
principal balance of the note if the default is not cured with the specified
grace period. We anticipate that the full amount of the convertible notes,
together with accrued interest, will be converted into shares of our common
stock, in accordance with the terms of the convertible notes. If we are required
to repay the convertible notes, we would be required to use our limited working
capital and raise additional funds. If we were unable to repay the notes when
required, the note holders could commence legal action against us to recover the
amounts due which ultimately could require the disposition of some or all of our
assets. Any such action would require us to curtail or cease operations.
The continuously adjustable conversion price feature of our $649,723 principal
amount convertible notes may encourage the note holders to make short sales of
our common stock, which could have a depressive effect on the price of our
common stock and could require us to issue a substantially greater number of
shares.
The convertible notes which we issued in June, July, August and October
2001 are convertible into shares of our common stock at a 20% discount to the
trading price of the common stock either prior to the issuance of the notes or
prior to the conversion, whichever is lower. The conversion feature may
encourage the note holders to make short sales of the common stock prior to
their conversions. Such sales could significantly depress the price of the
common stock, allowing the note holders to convert into a substantially larger
number of shares of common stock. For instance, if the price of our common stock
was $0.02 per share, we would be obligated to issue 57,125,075 shares. If the
price of our common stock fell to $0.01, we would be obligated to issue
91,560,605 shares. Our obligation to issue shares upon conversion is essentially
limitless.
Our Commitments To Issue Additional Common Stock May Dilute The Value Of Your
Stockholdings, Adversely Affect The Market Price Of Our Common Stock And Impair
Our Ability To Raise Capital.
We currently have outstanding commitments in the form of convertible
notes and warrants to issue a substantial number of new shares of our common
stock. The shares subject to these issuance commitments are included in this
prospectus and thus will be freely tradable. Furthermore, the number of shares
issuable upon conversion of these securities is subject to adjustment, depending
on the market price of our common stock. To the extent that the price of our
common stock decreases, we will be required to issue additional shares upon
conversion. There is essentially no limit to the number of shares that we may be
required to issue.
The following is an example of the amount of shares of our common stock
that are issuable, upon conversion of the notes, based on the market prices 25%,
50% and 75% below the current market value of $0.02:
Price Per Share Discount of 20% Number of Shares Issuable
--------------- -------------------------
.0150 .0120 54,126,917
.0100 .0080 81,190,375
.0050 .0040 162,380,750
7
As illustrated, the number of shares of common stock issuable upon
conversion of the outstanding convertible notes will increase if the market
price of our stock declines, which will cause dilution to our existing
stockholders.
An increase in the number of shares of our common stock that will
become available for sale in the public market may adversely affect the market
price of our common stock and, as a result, could impair our ability to raise
additional capital through the sale of our equity securities or convertible
securities.
8
Selling Stockholders
The table below sets forth information concerning the resale of the
shares of common stock by the selling stockholders. We will not receive any
proceeds from the resale of the common stock by the selling stockholders. We
will receive proceeds from the exercise of the warrants. Assuming all the shares
registered below are sold by the selling stockholders, none of the selling
stockholders will continue to own any shares of our common stock.
The following table also sets forth the name of each person who is
offering the resale of shares of common stock by this prospectus, the number of
shares of common stock beneficially owned by each person, the number of shares
of common stock that may be sold in this offering and the number of shares of
common stock each person will own after the offering, assuming they sell all of
the shares offered.
Shares Beneficially Owned Shares Beneficially Owned
Prior to the Offering After the Offering
Total
Name Number Percent Shares Offered Number Percent
Kenneth Schilling, President 8,200,000 7.1% 8,200,000 0 -
and Director
Mark Perkins, Vice President 5,600,000 5.0% 5,600,000 0 -
of Operations and Director
Terry Ratliff, Vice 5,600,000 5.0% 5,600,000 0 -
President, Chief Financial
Officer, and Secretary
Janine Notti(1) 2,750,000 2.6% 2,750,000 0 -
Martin Hussey(1) 2,000,000 1.8% 2,000,000 0 -
Michael Matthews(1) 2,000,000 1.8% 2,000,000 0 -
Paul Russo(1) 1,350,000 1.2% 1,350,000 0 -
Frank Ligammari(1) 1,260,000 1.1% 1,260,000 0 -
Dori Gerber(1) 1,100,000 1.0% 1,100,000 0 -
Steve Spriggs(1) 100,000 * 100,000 0 -
Phil Senff(1) 5,000,000 4.6% 5,000,000 0 -
Wayne Benner(1) 500,000 * 500,000 0 -
James Jefferson(1) 506,250 * 506,250 0 -
Anthony Morrison(1) 650,000 * 650,000 0 -
Kim Senff(1) 462,500 * 462,500 0 -
Dara Graffeo(1) 691,668 * 691,668 0 -
Stephen Prince 5,000,000 4.5% 5,000,000 0 -
Eugene Heller 6,000,000 5.3% 6,000,000 0 -
Gregory Sichenzia(2) 2,275,000 2.9% 2,275,000 0 -
Mark Ross(2) 2,275,000 2.9% 2,275,000 0 -
Richard Friedman(2) 2,275,000 2.9% 2,275,000 0 -
Michael Ference(2) 2,275,000 2.9% 2,275,000 0 -
Thomas Rose(2) 900,000 * 900,000 0 -
Noelle Tutunjian 750,000 * 750,000 0 -
Terri Bertucci (1) 900,000 * 900,000 0 -
* Less than one percent.
9
The number and percentage of shares beneficially owned is determined in
accordance with Rule 13d-3 of the Securities Exchange Act of 1934, and the
information is not necessarily indicative of beneficial ownership for any other
purpose. Under such rule, beneficial ownership includes any shares as to which
the selling stockholder has sole or shared voting power or investment power and
also any shares which the selling stockholder has the right to acquire within 60
days. The actual number of shares of common stock issuable upon the conversion
of the debentures and exercise of the debenture warrants is subject to
adjustment depending on, among other factors, the future market price of the
common stock, and could be materially less or more than the number estimated in
the table.
(1) Employee of iBiz Technology Corp.
(2) Partner in the law firm of Sichenzia, Ross, Friedman & Ference LLP.
10
Plan of Distribution
Sales of the shares may be effected by or for the account of the
selling stockholders from time to time in transactions (which may include block
transactions) on the Over-The-Counter Bulletin Board, in negotiated
transactions, through a combination of such methods of sale, or otherwise, at
fixed prices that may be changed, at market prices prevailing at the time of
sale or at negotiated prices. The selling stockholders may effect such
transactions by selling the shares directly to purchasers, through
broker-dealers acting as agents of the selling stockholders, or to
broker-dealers acting as agents for the selling stockholders, or to
broker-dealers who may purchase shares as principals and thereafter sell the
shares from time to time in transactions (which may include block transactions)
on the Over-The-Counter Bulletin Board, in negotiated transactions, through a
combination of such methods of sale, or otherwise. In effecting sales,
broker-dealers engaged by a selling stockholder may arrange for other
broker-dealers to participate. Such broker-dealers, if any, may receive
compensation in the form of discounts, concessions or commissions from the
selling stockholders and/or the purchasers of the shares for whom such
broker-dealers may act as agents or to whom they may sell as principals, or both
(which compensation as to a particular broker-dealer might be in excess of
customary commissions).
The selling stockholders and any broker-dealers or agents that
participate with the selling stockholders in the distribution of the shares may
be deemed to be "underwriters" within the meaning of the Securities Act of 1933.
Any commissions paid or any discounts or concessions allowed to any such
persons, and any profits received on the resale of the shares purchased by them
may be deemed to be underwriting commissions or discounts under the Securities
Act of 1933.
We have agreed to bear all expenses of registration of the shares other
than legal fees and expenses, if any, of counsel or other advisors of the
selling stockholders. The selling stockholders will bear any commissions,
discounts, concessions or other fees, if any, payable to broker-dealers in
connection with any sale of their shares.
We have agreed to indemnify the selling stockholders, or their
transferees or assignees, against certain liabilities, including liabilities
under the Securities Act of 1933 or to contribute to payments the selling
stockholders or their respective pledgees, donees, transferees or other
successors in interest, may be required to make in respect thereof.
11
Interests of Named Experts and Counsel
The balance sheet and financial statements of iBIZ Technology, Corp.
for the years ended October 31, 1999 and 2000 have been incorporated by
reference herein and in the registration statement in reliance upon the reports
of Moffitt & Company, P.C., independent certified public accountants, also
incorporated by reference herein, and upon the authority of such firm as experts
in accounting and auditing. The validity of the shares of common stock offered
hereby will be passed upon for the Registrant by Sichenzia, Ross, Friedman &
Ference, LLP, 1065 Avenue of the Americas, 21st Floor, New York, NY 10018.
Members of such firm have received shares of common stock, for services
rendered, which are registered hereunder.
Information Incorporated by Reference
The Securities and Exchange Commission allows us to incorporate by
reference certain of our publicly-filed documents into this prospectus, which
means that such information is considered part of this prospectus. Information
that we file with the SEC subsequent to the date of this prospectus will
automatically update and supersede this information. We incorporate by reference
the documents listed below and any future filings made with the SEC under all
documents subsequently filed by us pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934 until the selling stockholders have sold
all of the shares offered hereby or such shares have been deregistered.
The following documents filed with the SEC are incorporated herein by reference:
o Reference is made to the Registrant's prospectus relating to
its registration statement on Form SB-2, as filed with the SEC
on December 4, 2001, which is hereby incorporated by
reference.
o Reference is made to the Registrant's annual report on Form
10-KSB, as filed with the SEC on January 29, 2001, which is
hereby incorporated by reference.
o Reference is made to the Registrant's quarterly report on Form
10-QSB, as filed with the SEC on September 14, 2001, which is
hereby incorporated by reference.
We will provide without charge to each person to whom a copy of this
prospectus has been delivered, on written or oral request a copy of any or all
of the documents incorporated by reference in this prospectus, other than
exhibits to such documents. Written or oral requests for such copies should be
directed to Mr. Kenneth Schilling, President, iBIZ Technology Corp., 1919 West
Lone Cactus Drive, Phoenix, AZ 85021.
Disclosure Of Commission Position On Indemnification For Securities Act
Liabilities
iBIZ's Articles of Incorporation, as amended, provide to the fullest
extent permitted by Florida law, a director or officer of iBIZ shall not be
personally liable to iBIZ or its shareholders for damages for breach of such
director's or officer's fiduciary duty. The effect of this provision of iBIZ's
Articles of Incorporation, as amended, is to eliminate the right of iBIZ and its
shareholders (through shareholders' derivative suits on behalf of iBIZ) to
recover damages against a director or officer for breach of the fiduciary duty
of care as a director or officer (including breaches resulting from negligent or
grossly negligent behavior), except under certain situations defined by statute.
iBIZ believes that the indemnification provisions in its Articles of
Incorporation, as amended, are necessary to attract and retain qualified persons
as directors and officers.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to its directors, officers and controlling persons pursuant
to the foregoing provisions or otherwise, iBIZ has been advised that in the
opinion of the SEC such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable.
12
Additional Information Available to You
This prospectus is part of a Registration Statement on Form S-8 that we
filed with the SEC. Certain information in the Registration Statement has been
omitted from this prospectus in accordance with the rules of the SEC. We file
annual, quarterly and special reports, proxy statements and other information
with the SEC. You can inspect and copy the Registration Statement as well as
reports, proxy statements and other information we have filed with the SEC at
the public reference room maintained by the SEC at 450 Fifth Street, NW,
Washington, D.C. 20549, and at the following Regional Offices of the SEC:
Northwest Atrium Center, 500 West Madison Street, Chicago, Illinois 60661. You
can obtain copies from the public reference room of the SEC at 450 Fifth Street,
NW, Washington, D.C. 20549, upon payment of certain fees. You can call the SEC
at 1-800-732-0330 for further information about the public reference room. We
are also required to file electronic versions of these documents with the SEC,
which may be accessed through the SEC's World Wide Web site at
http://www.sec.gov. Our common stock is quoted on The Over-The-Counter Bulletin
Board. Reports, proxy and information statements and other information
concerning us may be inspected at The Nasdaq Stock Market at 1735 K Street, NW,
Washington, D.C. 20006.
13
No dealer, salesperson or other person is authorized to give any
information or to make any representations other than those contained in this
prospectus, and, if given or made, such information or representations must not
be relied upon as having been authorized by us. This prospectus does not
constitute an offer to buy any security other than the securities offered by
this prospectus, or an offer to sell or a solicitation of an offer to buy any
securities by any person in any jurisdiction where such offer or solicitation is
not authorized or is unlawful. Neither delivery of this prospectus nor any sale
hereunder shall, under any circumstances, create any implication that there has
been no change in the affairs of our company since the date hereof.
------------------------
60,520,418 SHARES OF COMMON STOCK
------------------------
PROSPECTUS
---------------
January 7, 2002
14
PART I
Item 1. Plan Information.
The documents containing the information specified in Item 1 will be
sent or given to participants in the Registrant's 2002 Stock Incentive Plan as
specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the
"Securities Act"). Such documents are not required to be and are not filed with
the Securities and Exchange CommissionSEC (the "SEC") either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424. These documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
Item 2. Registrant Information and the 2002 Stock Incentive Plan Annual
Information.
Upon written or oral request, any of the documents incorporated by
reference in Item 3 of Part II of this Registration Statement (which documents
are incorporated by reference in this Section 10(a) Prospectus), other documents
required to be delivered to eligible employees, non-employee directors and
consultants, pursuant to Rule 428(b) or additional information about the 2002
Stock Incentive Plan are available without charge by contacting:
Kenneth Schilling, President
1919 West Lone Cactus Drive
Phoenix, Arizona 85021
(623) 492-9200
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference into this Registration
Statement the documents listed below. In addition, all documents subsequently
filed pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934 (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 reference into this Registration Statement and to be a part
hereof from the date of filing of such documents:
o Reference is made to the Registrant's prospectus relating to
its registration statement on Form SB-2, as filed with the SEC
on December 4, 2001, which is hereby incorporated by
reference.
o Reference is made to the Registrant's annual report on Form
10-KSB, as filed with the SEC on January 29, 2001, which is
hereby incorporated by reference.
o Reference is made to the Registrant's quarterly report on Form
10-QSB, as filed with the SEC on September 14, 2001, which is
hereby incorporated by reference.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
The balance sheet and financial statements of iBIZ Technology, Corp.
for the years ended October 31, 1999 and 2000 have been incorporated by
reference herein and in the registration statement in reliance upon the reports
of Moffitt & Company, P.C., independent certified public accountants, also
incorporated by reference herein, and upon the authority of such firm as experts
in accounting and auditing. The validity of the shares of common stock offered
hereby will be passed upon for the Registrant by Sichenzia, Ross, Friedman &
Ference, LLP, 1065 Avenue of the Americas, 21st Floor, New York, NY 10018.
Members of such firm have received shares of common stock, for services
rendered, which are registered hereunder.
15
Item 6. Indemnification of Directors and Officers.
iBIZ's Articles of Incorporation, as amended, provide to the fullest
extent permitted by Florida law, a director or officer of iBIZ shall not be
personally liable to iBIZ or its shareholders for damages for breach of such
director's or officer's fiduciary duty. The effect of this provision of iBIZ's
Articles of Incorporation, as amended, is to eliminate the right of iBIZ and its
shareholders (through shareholders' derivative suits on behalf of iBIZ) to
recover damages against a director or officer for breach of the fiduciary duty
of care as a director or officer (including breaches resulting from negligent or
grossly negligent behavior), except under certain situations defined by statute.
iBIZ believes that the indemnification provisions in its Articles of
Incorporation, as amended, are necessary to attract and retain qualified persons
as directors and officers.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (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 Securities
and Exchange 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
Securities Act and will be governed by the final adjudication of such issue.
Item 7. Exemption from Registration Claimed.
In January 2002, the Registrant issued an aggregate of 60,520,418
shares of Common Stock to employees, consultants and vendors in exchange for
services. The shares were issued in reliance on Section 4(2) of the Securities
Act.
Item 8. Exhibits.
16
EXHIBIT
NUMBER EXHIBIT
4.1 2002 Stock Incentive Plan.
5.1 Opinion of Sichenzia Ross, Friedman & Ference LLP
23.1 Consent of Moffitt & Company, P.C.
23.2 Consent of Sichenzia Ross, Friedman & Ference LLP is contained in Exhibit 5.1.
24.1 Power of Attorney (included in 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:
17
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.
(b) 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 Section 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 herein, 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 of 1933 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 Securities and
Exchange CommissionSEC such indemnification is against public policy as
expressed in the 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.
18
Signatures
In accordance with 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 of an amendment to a filing on Form S-8 and authorized this
amendment to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Phoenix, State of Arizona on February 12, 2002.
iBIZ TECHNOLOGY CORP.
By:/s/ KENNETH W. SCHILLING
Kenneth W. Schilling,
President,
Director
In accordance with the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities stated, on February 12, 2002.
By:/s/ KENNETH W. SCHILLING
Kenneth W. Schilling,
President,
Director
By:/s/ MARK H. PERKINS
Mark H. Perkins,
Vice President of
Operations, Director
19