As Filed With the Securities and Exchange Commission on December 4, 2000
Registration No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
______________________
EMERGENT INFORMATION TECHNOLOGIES, INC.
---------------------------------------
(Exact name of registrant as specified in its charter)
California 33-0080929
---------- ----------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4695 MacArthur Court, Eighth Floor, Newport Beach, California 92660
-------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
EMERGENT INFORMATION TECHNOLOGIES, INC.
AMENDED AND RESTATED EMPLOYEE STOCK PURCHASE PLAN
-------------------------------------------------
(Full title of the plan)
Steven S. Myers
President and Chief Executive Officer
EMERGENT INFORMATION TECHNOLOGIES, INC.
4695 MacArthur Court, Eighth Floor
Newport Beach, California 92660
-------------------------------
(Name and address of agent for service)
(949) 975-1550
--------------
(Telephone number, including area code, of agent for service)
COPY TO:
-------
Thomas J. Crane, Esq.
Rutan & Tucker, LLP
611 Anton Boulevard, Fourteenth Floor
Costa Mesa, California 92626
(714) 641-5100
Calculation of Registration Fee
=============================================================================================================
Title of securities to be Amount to be Proposed Proposed Amount of
registered registered(1) maximum offering maximum aggregate registration fee
price per unit offering price(2)
- -------------------------------------------------------------------------------------------------------------
Common Stock, no par value. 500,000 Shares $1.3125 $656,250.00 $173.25
=============================================================================================================
(1) Emergent Information Technologies, Inc. (the "Registrant") previously
registered 250,000 shares of its Common Stock under its Amended and Restated
Employee Stock Purchase Plan (the "Plan") with the Securities and Exchange
Commission (the "Commission") on July 30, 1999. This amount covers 500,000
additional shares available for issuance under the Plan.
(2) Computed pursuant to Rules 457(c) and 457(h) on the basis of the average of
the high and low sales price reported on the NASDAQ National Market on
December 1, 2000.
================================================================================
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. Plan Information.
----------------
Not filed as part of this Registration Statement pursuant to Note to Part I
of Form S-8.
ITEM 2. Registrant Information and Employee Plan Annual Information.
-----------------------------------------------------------
Not filed as part of this Registration Statement pursuant to Note to Part I
of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents are incorporated by reference in this Registration
Statement:
(a) Registrant's Information Statement filed with the Commission on
October 4, 2000.
(b) Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999, filed with the Commission on April 7, 2000, as amended by
Form 10-K/A filed with the Commission on April 26, 2000, and amended by Form 10-
K/A filed with the Commission on June 5, 2000.
(c) Registrant's Proxy Statement filed with the Commission on May 19,
2000, in connection with Registrant's Annual Meeting of Shareholders held on
June 6, 2000.
(d) Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 2000, filed with the Commission on November 14, 2000.
(e) Registrant's Quarterly Report on Form 10-Q for the quarter ended June
30, 2000, filed with the Commission on August 14, 2000.
(f) Registrant's Quarterly Report on Form 10-Q for the quarter ended March
31, 2000, filed with the Commission on May 15, 2000.
(g) Registrant's Current Report on Form 8-K, filed with the Commission on
May 26, 2000.
(h) Registrant's Current Report on Form 8-K, filed with the Commission on
May 5, 2000.
(i) All reports of the Registrant filed pursuant to Section 13(a) and
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
since the fiscal year ended December 31, 1998;
(j) The description of the Registrant's securities contained in the
Registrant's registration statement on Form 8-A (File No. 000 23585) filed under
the Exchange Act on January 27, 1997, together with any amendment or report
filed pursuant to such Exchange Act amending or updating such description.
All reports and other documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates
-2-
that all securities offered hereby have been sold, or which deregisters all
securities remaining unsold, shall be deemed incorporated by reference into this
Registration Statement and shall be a part hereof from the date of filing such
documents.
ITEM 4. Description of Securities.
-------------------------
Not Applicable
ITEM 5. Interests of Named Experts and Counsel.
--------------------------------------
Not Applicable
ITEM 6. Indemnification of Directors and Officers.
-----------------------------------------
The Registrant's Amended and Restated Articles of Incorporation (the
"Articles") provide that the liability of the Registrant's directors for
monetary damages shall be eliminated to the fullest extent permissible under
California law. This is intended to eliminate the personal liability of a
director for monetary damages in an action brought by or in the right of the
Registrant for breach of a director's duties to the Registrant or its
shareholders except for liability: (i) for acts or omissions that involve
intentional misconduct or a knowing and culpable violation of law; (ii) for acts
or omissions that a director believes to be contrary to the best interest of the
Registrant or its shareholders or that involve the absence of good faith on the
part of the director; (iii) for any transaction for which a director derived an
improper benefit; (iv) for acts or omissions that show a reckless disregard for
the director's duty to the Registrant or its shareholders in circumstances in
which the director was aware, or should have been aware, in the ordinary course
of performing a director's duties, of a risk of serious injury to the Registrant
or its shareholders; (v) for acts or omissions that constitute an unexcused
pattern of inattention that amounts to an abdication of the director's duty to
the Registrant or its shareholders; (vi) with respect to certain transactions,
or the approval of transactions in which a director has a material financial
interest; and (vii) expressly imposed by statute, for approval of certain
improper distributions to shareholders or certain loans or guarantees.
The Articles also authorize the Registrant to provide indemnification to
its agents (as defined in Section 317 of the California Corporations Code),
through the Registrant's Amended and Restated Bylaws (the "Bylaws") or through
agreements with such agents or both, for breach of duty to the Registrant and
its shareholders, in excess of the indemnification to agents or both, for breach
of duty to the Registrant and its shareholders, in excess of the indemnification
otherwise permitted by Section 317 of the California Corporations Code, subject
to the limits on such excess indemnification set forth in Section 204 of the
California Corporations Code.
The Bylaws of the Registrant provide for indemnification of the
Registrant's officers, directors, employees, and other agents to the extent and
under the circumstances permitted by California law. The Bylaws further provide
that no indemnification shall be made in the case of a derivative suit in
respect to any claim as to which such person has been adjudged to be liable to
the Corporation, except with court approval, nor shall indemnification be made
for amounts paid in settling or otherwise disposing of a pending action without
court approval, or for expenses incurred in defending a pending action which is
settled or otherwise disposed of without court approval. Indemnification under
the Bylaws is mandatory in the case of an agent of the Registrant (present or
past) who is successful on the merits in defense of a suit against him or her in
such capacity. In all other cases where indemnification is permitted by the
Bylaws, a determination to indemnify such person must be made by a majority of a
quorum of disinterested directors (if a quorum of directors is not obtainable,
by independent legal counsel in a written legal opinion), a majority of
disinterested shareholders, or the court in which the suit is pending.
-3-
The Registrant has entered into agreements to indemnify its directors and
executive officers in addition to the indemnification provided for in the
Articles and Bylaws. Among other things, these agreements provide that the
Registrant will indemnify, subject to certain requirements, each of the
Registrant's directors and executive officers for certain expenses (including
attorneys' fees), judgments, fines and settlement amounts incurred by such
person in any action or proceeding, including any action by or in the rights of
the Registrant, on account of services by such person as a director or officer
of the Registrant, or as a director or officer of any other company or
enterprise to which the person provides services at the request of the
Registrant.
ITEM 7. Exemption from Registration Claimed.
-----------------------------------
Not Applicable
ITEM 8. Exhibits.
--------
4.1 Emergent Information Technologies, Inc. Amended and Restated
Employee Stock Purchase Plan.
5 Opinion of Rutan & Tucker, LLP.
23.1 Consent of Rutan & Tucker, LLP (included in Exhibit 5).
23.2 Consent of KPMG LLP.
24.1 Power of Attorney (see p. 7).
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 (unless the information
required by paragraphs (i) and (ii) below is contained in periodic reports filed
by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in this Registration Statement):
(i) To include any prospectus required by Section 10(a)(3) of the
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; and
(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 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 the 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.
-4-
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the 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 the time shall be deemed to be the initial bona fide offering thereof.
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 Commission
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.
-5-
SIGNATURES
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 Newport Beach, State of California, on November 29,
2000.
EMERGENT INFORMATION TECHNOLOGIES, INC., a
California corporation
By: /s/ Steven S. Myers
----------------------------------------------
Steven S. Myers, President and Chief Executive
Officer
-6-
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Steven S. Myers and Michael N. Okada,
jointly and severally, his attorneys-in-fact and agents, each with the power of
substitution and resubstitution, for him and in his name, place or stead, in any
and all capacities, to sign any amendment to this Registration Statement on Form
S-8, and to file such amendments, together with exhibits and other documents in
connection therewith, with the Securities and Exchange Commission, granting to
each attorney-in-fact and agent, 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 as he might or could do in person, and ratifying and
confirming all that the attorneys-in-fact and agents, or his substitute or
substitutes, may 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, including a
majority of the Board of Directors, in the capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/ Steven S. Myers Chairman of the Board, President and November 29, 2000
- -------------------------------------- Chief Executive Officer (Principal
Steven S. Myers Executive Officer)
/s/ Michael N. Okada Vice President, Chief Accounting November 29, 2000
- -------------------------------------- Officer and Secretary (Principal
Michael N. Okada Accounting Officer)
/s/ J. Christopher Lewis Director November 29, 2000
- --------------------------------------
J. Christopher Lewis
Director November __, 2000
- --------------------------------------
Vincent C. Smith
/s/ Joseph B. Fuller Director November 29, 2000
- --------------------------------------
Joseph B. Fuller
/s/ Luther J. Nussbaum Director November 29, 2000
- --------------------------------------
Luther J. Nussbaum
/s/ Albert S. Nagy Director November 29, 2000
- --------------------------------------
Albert S. Nagy
-7-
EXHIBITS INDEX
4.1 Emergent Information Technologies, Inc. Amended and Restated Employee
Stock Purchase Plan
5 Opinion of Rutan & Tucker, LLP
23.1 Consent of Rutan & Tucker, LLP (included in Exhibit 5)
23.2 Consent of KPMG LLP
24.1 Power of Attorney (see p. 7)
-8-