AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 18, 2000
REGISTRATION NO. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under The Securities Act of 1933
INTERACTIVE NETWORK, INC.
(Exact name of registrant as specified in its charter)
CALIFORNIA 94-3025019
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
180 SECOND STREET, SUITE B, LOS ALTOS, CALIFORNIA 94022
(Address of Principal Executive Offices including Zip Code)
1988 STOCK OPTION PLAN
(Full title of the plan)
BRUCE W. BAUER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
INTERACTIVE NETWORK, INC.
180 SECOND STREET, SUITE B, LOS ALTOS, CALIFORNIA 94022
(Name and address of agent for service)
(650) 947-3345
(Telephone number, including area code, of agent for service)
With a copy to:
ROBERT S. TOWNSEND, ESQ.
MORRISON & FOERSTER LLP
425 MARKET STREET
SAN FRANCISCO, CALIFORNIA 94105
(415) 268-7000
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Securities Account to be Maximum Offering Maximum Aggregate Amount of
to be Registered Registered Price per Share(2) Offering Price Registration Fee
---------------- ---------- ------------------ -------------- ----------------
Common Stock,
no par value 1,900,000 shares(1) $1.125 $2,137,500 $564.30
(1) Represents a portion of the shares which were available for grant under the
1988 Stock Option Plan.
(2) Calculated solely for purposes of this offering under Rule 457(h) under the
Securities Act of 1933, as amended, on the basis of the average of the high
and low price per share of Interactive Network, Inc.'s Common Stock on the
OTC Bulletin Board on December 15, 2000.
PART I
EXPLANATORY NOTE
The documents containing the information concerning the 1988 Stock
Option Plan specified in Part I of Form S-8 (plan information and registrant
information and employee plan annual information) will be sent or given to
employees as specified by Securities and Exchange Commission (the "Commission")
Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act").
Such documents need not be filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424 of the Securities Act. These documents and the documents incorporated
by reference in this Registration Statement pursuant to Item 3 of Form S-8 (Part
II hereof), taken together, constitute a prospectus that meets the requirements
of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Interactive Network, Inc. (the
"Registrant") with the Commission are incorporated by reference herein:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999, filed on April 14, 2000 and amended on November 9,
2000, pursuant to Section 13(a) of the Securities Exchange Act of 1934 (the
"Exchange Act").
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 2000, filed on May 15, 2000, pursuant to Section 13(a)
of the Exchange Act.
(c) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 2000, filed on August 15, 2000 and amended on November 9,
2000, pursuant to Section 13(a) of the Exchange Act.
(d) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended September 30, 2000, filed on November 14, 2000, pursuant to
Section 13(a) of the Exchange Act.
(e) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the audited financial
statements covered in (a) above.
(f) The description of the Registrant's Common Stock which is contained
in its Registration Statement (No. 33-42951) on Form S-1 filed with the
Commission on September 24, 1991.
All documents filed by the Registrant with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of 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 such documents.
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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 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the shares of Common Stock offered hereby will be
passed upon for the Registrant by Morrison & Foerster LLP, 425 Market Street,
San Francisco, California 94105.
The Registrant has entered into an agreement with Morrison & Foerster
LLP for payment of previously-incurred legal expenses on the following terms:
legal fees incurred prior to confirmation of its bankruptcy plan of
reorganization, reflected on the Balance Sheet of the registrant as of September
30, 2000 as $957,775 is due and payable on September 30, 2001, interest free
until that date; $684,255 of legal fees incurred after confirmation of the
bankruptcy plan is payable in equal monthly installments over two years,
commencing October 15, 2001, with interest at 1% per annum over Bank of
America's prime rate. The Registrant has agreed to issue to Morrison & Foerster
a warrant exercisable in whole or in part from time to time for 10 years, to
purchase sufficient shares of the Registrant's common stock to enable the
warrant holder, by tender of the warrant in satisfaction of such indebtedness,
to extinguish such indebtedness in full. The warrant exercise price will be
equal to 101% of the average of the closing bid prices for the Registrant's
common stock for the twenty business days on which the stock traded preceding
the date of filing with the SEC of the Company's Form 10-Q for the quarter ended
September 30, 2000 but not less than $1.22 per share.
In addition to the foregoing legal expenses, through September 30,
2000, contingent legal expenses in the amount of $1,145,308 have been incurred
by the Registrant in contesting claims in the Bankruptcy Court, which the
Registrant will be obligated to pay only out of savings realized from a
successful reversal or reduction on appeal of awards granted by the Bankruptcy
Court with respect to contested claims, or through exercise, by cancellation of
such expense indebtedness at the same exercise price as discussed above, of a
warrant for the Registrant's common stock if an appeal is not pursued.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Bylaws provide that the Registrant will indemnify its
agents to the fullest extent permitted by California law. The Registrant is also
empowered under its Bylaws to enter into indemnification agreements with its
directors and officers and to purchase insurance on behalf of any person whom it
is required or permitted to indemnify.
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In addition, the Registrant's Articles of Incorporation, as amended
provide that the liability of the Registrant's directors shall be eliminated to
the fullest extent permissible under California law. This provision in the
Articles of Incorporation does not eliminate a director's duty of care, and in
appropriate circumstances equitable remedies such as an injunction or other
forms of non-monetary relief will remain available under California law. Each
director will continue to be subject to liability for breach of the director's
duty of loyalty to the Registrant, for acts or omission not in good faith or
involving intentional misconduct or knowing violations of law, for acts or
omissions that the director believes to be contrary to the best interests of the
Registrant or its shareholders, for any transaction from which the director
derived an improper personal benefit, for improper transactions between the
director and the Registrant and for improper distributions to shareholders and
loans to directors and officers. This provision also does not affect a
director's responsibilities under any laws, such as the federal securities laws
or state or federal environmental laws.
The Registrant has entered into agreements with its directors and
executive officers that require the Registrant to indemnify such persons against
expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred (including expenses of derivative action) in connection with
any proceeding, whether actual or threatened, to which any such person may be
made a party by reason of the fact that such person is or was a director or
officer of the Registrant or any of its affiliated enterprises, provided such
person acted in good faith and in a manner such person reasonably believed to be
in or not opposed to the best interests of the Registrant and, with respect to
any criminal proceeding, had no reasonable cause to believe his or her conduct
was unlawful. The indemnification agreement also sets forth certain procedures
that will apply in the event of a claim for indemnification thereunder.
The Registrant has obtained an insurance policy covering directors and
officers liability and company reimbursement, pursuant to which the Registrant's
officers and directors, or the Registrant if it has made payments to indemnify
its officers and directors, will be reimbursed for certain costs, charges and
expenses incurred as a result of proceedings involving directors and officers in
their capacity as such, up to the limit of the policy.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Amended and Restated Articles of Incorporation of the
Registrant (incorporated by reference to Exhibit 4.1 of
Exhibits to Registrant's Form S-8 Registration Statement, as
filed with the Commission on November 10, 1992)
4.2 Certificate of Determination of the Registrant, filed with the
California Secretary of State on September 20, 1994
(incorporated by reference to Exhibit 3.3 of Exhibits to
Registrant's Form 8-K Report, as filed with the Commission on
October 3, 1994)
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4.3 Certificate of Amendment of Amended and Restated Articles of
Incorporation of Registrant, dated May 22, 1995 (incorporated
by reference to Exhibit 3.3 of Exhibits to Registrant's Form
10-K Annual Report, as filed with the Commission on March 30,
1999)
4.4(a) Bylaws of the Registrant, as amended (incorporated by
reference to Exhibit 4.2 of Exhibits to Registrant's Form S-1
Registration Statement, as filed with the Commission on
November 10, 1992)
4.4(b) Amendment to Bylaws of the Registrant, dated February 26, 1999
(incorporated by reference to Exhibit 3.4(b) of Exhibits to
Registrant's Form 10-K Annual Report, as filed with the
Commission on March 30, 1999)
4.5 1988 Stock Option Plan, as amended.
4.6 Form of Incentive Stock Option Agreement for use with the 1988
Stock Option Plan.
4.7 Form of Nonstatutory Stock Option Agreement for use with the
1988 Stock Option Plan.
5.1 Opinion of Morrison & Foerster LLP.
23.1 Consent of KPMG LLP, Independent Public Accountants.
23.2 Consent of Marc Lumer & Co.
23.3 Consent of Morrison & Foerster LLP. Reference is made to
Exhibit 5.1.
24.1 Power of Attorney. Reference is made to the signature page of
this Registration Statement.
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:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
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(ii) To reflect in the prospectus any facts or events
arising after the effective date of the 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 the 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;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the Registration Statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference 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 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 therein, and the offering of such securities
at that time shall be deemed to be the initial BONA FIDE offering thereof.
The undersigned Registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
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 provisions described in Item 6 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.
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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 Los Altos, State of California, on this 6th day of
December, 2000.
INTERACTIVE WORK, INC.
By: /S/ BRUCE BAUER
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Bruce W. Bauer
President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Bruce W. Bauer, as his true and lawful
attorney-in-fact and agent, 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 Securities and Exchange Commission, granting
unto said attorney-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 connection therewith as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agents, or his substitute or substitutes, may lawfully 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 in the
capacities and on the dates indicated:
SIGNATURE TITLE DATE
- --------- ----- ----
Director, President, Chief
Executive Officer, Secretary and
/S/ BRUCE BAUER Treasurer (Principal Executive,
- ------------------------- Financial and Accounting Officer) December 6, 2000
Bruce W. Bauer
/S/ BRUCE BAUER
- ------------------------- Director December 6, 2000
William H. Green
/S/ WILLIAM GROENEVELD
- ------------------------- Director December 6, 2000
William L. Groeneveld
/S/ LARRY TAYMOR
- ------------------------- Director December 6, 2000
Larry Taymor
/S/ ROBERT HESSE
- ------------------------- Director December 6, 2000
Robert Hesse
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EXHIBIT INDEX
Exhibit Sequential
Number Exhibit Description Page Number
- ------ ------------------- -----------
4.1 Amended and Restated Articles of Incorporation of the Registrant
(incorporated by reference to Exhibit 4.1 of Exhibits to Registrant's
Form S-8 Registration Statement, as filed with the Commission on
November 10, 1992)
4.2 Certificate of Determination of the Registrant, filed with the
California Secretary of State on September 20, 1994 (incorporated by
reference to Exhibit 3.3 of Exhibits to Registrant's Form 8-K Report,
as filed with the Commission on October 3, 1994)
4.3 Certificate of Amendment of Amended and Restated Articles of
Incorporation of Registrant, dated May 22, 1995 (incorporated by
reference to Exhibit 3.3 of Exhibits to Registrant's Form 10-K Annual
Report, as filed with the Commission on March 30, 1999)
4.4(a) Bylaws of the Registrant, as amended (incorporated by reference to
Exhibit 4.2 of Exhibits to Registrant's Form S-1 Registration
Statement, as filed with the Commission on November 10, 1992)
4.4(b) Amendment to Bylaws of the Registrant, dated February 26, 1999
(incorporated by reference to Exhibit 3.4(b) of Exhibits to
Registrant's Form 10-K Annual Report, as filed with the Commission on
March 30, 1999)
4.5 1988 Stock Option Plan, as amended.
4.6 Form of Incentive Stock Option Agreement for use with the 1988 Stock
Option Plan.
4.7 Form of Nonstatutory Stock Option Agreement for use with the 1988 Stock
Option Plan.
5.1 Opinion of Morrison & Foerster LLP.
23.1 Consent of KPMG LLP, Independent Public Accountants.
23.2 Consent of Marc Lumer & Co., Independent Public Accountants.
23.2 Consent of Morrison & Foerster LLP. Reference is made to Exhibit 5.1.
24.1 Power of Attorney. Reference is made to the signature page of this
Registration Statement.
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