As filed with the Securities and Exchange Commission on July 22, 1998
Registration No. ________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
e-NET, INC.
(Exact name of registrant as specified in its charter)
Delaware 52-1929282
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
12800 Middlebrook Road, Suite 200 20874
Germantown, Maryland (Zip Code)
(Address of Principal
Executive Offices)
e-NET, INC. 1997 NON-QUALIFIED STOCK OPTION PLAN
(Full title of the plan)
Robert A. Veschi Charles A. Sweet, Esq.
President Williams & Connolly
e-Net, Inc. 725 - 12th Street, N.W.
12800 Middlebrook Road, Suite 200 Washington, D.C. 20005
Germantown, Maryland 20874 (202) 434-5000
(Name and address of agent (Copy to)
for service)
(301) 601-8700
(Telephone number, including area
Calculation of Registration Fee
Proposed Proposed
Amount maximum maximum
Title of securities to be offering price aggregate Amount of
to be registered registered per share offering price registration fee
------------------- ---------- -------------- -------------- ----------------
Common Stock
$0.01 per value 500,000(1) $ 10.79(2) $5,395,510(2) $1591.68(3)
(1) The e-Net, Inc. 1997 Non-Qualified Stock Option Plan, as amended (the
"Plan") authorizes the issuance of a maximum of 500,000 shares of common stock,
$0.01 par value ("Common Stock"), all of which are being registered hereunder.
271,000 shares of Common Stock authorized to be issued under the Plan are
subject to outstanding options granted under the Plan and 229,000 are available
for future grants thereunder.
(2) Estimated pursuant to Rule 457(c) and (h) solely for the purposes of
calculating the amount of the registration fee. The proposed maximum offering
price per share was determined by calculating the weighted average exercise
price of (i) the 271,000 shares of Common Stock being offered under outstanding
options at a weighted average exercise price of $4.75, and (ii) the 229,000
shares of Common Stock being offered at an exercise price of $17.94, based on
the average of the high and low price per share of the Common Stock on July 17,
1998, as reported in the Nasdaq SmallCap Market.
(3) Calculated by dividing the proposed maximum aggregate offering price
by the amount to be registered.
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") by e-Net, Inc. (the "Company"), Commission File No.
000-20865, are incorporated by reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-KSB for the fiscal
year ended March 31, 1998, filed with the Commission on June 30, 1998.
(b) The description of the Common Stock contained in the
Company's Form 8-A Registration Statement, as amended, filed with the
Commission on February 11, 1997, and all amendments and reports
subsequently filed for the purpose of updating that description.
In addition to the foregoing documents, all documents subsequently
filed by the Company 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
hereby 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 the filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference in this Registration Statement 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 other subsequently filed document which
also is or 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.
Not applicable.
Item 6. Indemnification of Directors and Officers.
As permitted by Delaware law, the Company's Certificate of
Incorporation includes a provision that provides that the Company will, to the
fullest extent permitted by Section 145 of the Delaware General Corporation Law,
as amended from time to time ("DGCL"), indemnify all
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persons whom it may indemnify pursuant thereto. To the fullest extent permitted
by the DGCL, a director of the Company shall not be personally liable to the
Company or its stockholders for monetary damages for a breach of fiduciary duty
as a director. The provisions are intended to afford directors protection
against, and to limit their potential liability for, monetary damages resulting
from suits alleging a breach of the duty of care by a director; they also
diminish the potential rights of action which might otherwise be available to
shareholders by limiting the liability of officers and directors to the maximum
extent allowable under Delaware law and by affording indemnification against
most damages and settlement amounts paid by a director of the Company in
connection with any shareholders derivative action. As a consequence of these
provisions, stockholders of the Company will be unable to recover monetary
damages against directors for action taken by them that may constitute
negligence or gross negligence in performance of their duties unless such
conduct falls within an exception under DGCL or under Delaware case law. The
provision, however, does not alter the applicable standards governing a
director's fiduciary duty and does not eliminate or limit the right of the
Company or any stockholder to obtain an injunction or any other type of
equitable relief in the event of a breach of fiduciary duty. Management of the
Company believes these provisions will assist the Company in securing and
retaining qualified persons to serve as directors. The Company is unaware of any
pending or threatened litigation against the Company or its directors that would
result in any liability for which such director would seek indemnification or
similar protection.
The Company believes that the substantial increase in the number of
lawsuits being threatened or filed against corporations and their directors has
resulted in a growing reluctance on the part of capable persons to serve as
members of boards of directors of public companies. The Company also believes
that the increased risk of personal liability without adequate insurance or
other indemnity protection for its directors could result in overcautious and
less effective direction and management of the Company. The limitation on
liability and indemnification provisions are intended to increase the protection
provided directors and, thus, increase the Company's ability to attract and
retain qualified persons to serve as directors. Additionally, the Company has
procured directors liability insurance coverage, but there is no assurance that
it will provide coverage to the extent of the director's claims for
indemnification. In such event, the Company may be forced to bear a portion or
all of the cost of the director's claims for indemnification and, the value of
the Company stock may be adversely affected as a result. There is also no
assurance that the Company will be able to continue to procure directors
liability insurance. It is uncertain whether the Company's directors would
continue to serve in such capacities if improved protection from liability were
not provided.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the small business
issuer pursuant to the foregoing provisions, or otherwise, the small business
issuer has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable.
Item 7. Exemption from Registration.
Not applicable.
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Item 8. Exhibits.
4.1 -- e-Net, Inc. 1997 Nonqualified Stock Option Plan, as amended
4.2 -- Certificate of Incorporation of e-Net, Inc., as
corrected and amended (incorporated by reference from
Exhibit 3.0 to the Company's Registration Statement on
Form SB-2, Reg. No. 333-3860, as amended and declared
effective on April 7, 1997) (the "IPO Registration
Statement") and Exhibits 3.1 and 3.2 to Post-Effective
Amendment No. 1 to the IPO Registration Statement, as
declared effective on May 8, 1998
4.3 -- Bylaws of e-Net, Inc, as amended (incorporated by
reference from Exhibit 3.3 to the IPO Registration
Statement)
5.1 -- Opinion of Williams & Connolly regarding legality of
securities being registered
24.1 -- Consent of Grant Thornton LLP
24.2 -- Consent of Williams & Connolly (included in Exhibit 5.1)
25.1 -- Power of Attorney (included on page 6)
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;
(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; 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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) shall not
apply to information required to be included in a post-effective
amendment by those paragraphs and which 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.
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(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 therein, 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 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 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 of 1933 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, duly thereunto
authorized, in the County of Montgomery, State of Maryland, on July 21, 1998.
e-NET, INC.
By: /s/ Robert A. Veschi
---------------------------
Robert A. Veschi
President
In accordance with the requirements of the Securities Act of 1933, as
amended, this Registration Statement on Form S-8 has been signed by the
following persons in the capacities and on the dates stated. Each person whose
signature appears below hereby constitutes and appoints each of Robert A. Veschi
and Donald J. Shoff as such person's true and lawful attorney-in-fact and agent
with full power of substitution for such person and in such person's name, place
and stead, in any and all capacities, to sign and to file with the Securities
and Exchange Commission, any and all amendments and post-effective amendments to
this Registration Statement, with exhibits thereto and other documents in
connection therewith, granting unto said 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 to all intents and
purposes as such person might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or any substitute therefor,
may lawfully do or cause to be done by virtue thereof.
Name Title Date
- ----- ----- ----
/s/Alonzo E. Short, Jr. Chairman of the Board July 21, 1998
- -----------------------------------------------------
Alonzo E. Short, Jr., Lt. Gen., USA (ret.)
/s/Robert A. Veschi President, Chief Executive July 21, 1998
- ----------------------------------------------------- Officer, Director
Robert A. Veschi
/s/Donald J. Shoff Chief Financial Officer July 21, 1998
- ----------------------------------------------------- (Chief Accounting Officer)
Donald J. Shoff
/s/William L. Hooton Director July 21, 1998
- -----------------------------------------------------
William L. Hooton
/s/Clive Whittenbury Director July 21, 1998
- -----------------------------------------------------
Clive Whittenbury, Ph.D.
/s/William W. Rogers, Jr. Director July 21, 1998
- --------------------------------------------
William W. Rogers, Jr.
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Exhibit Index
4.1 -- e-Net, Inc. Nonqualified Stock Option Plan, as amended
4.2 -- Certificate of Incorporation of e-Net, Inc. as corrected and
amended (incorporated by reference from Exhibit 3.0 to the
Company's Registration Statement on Form SB-2, Reg. No.
333-3860, as amended and declared effective on April 7, 1997)
(the "IPO Registration Statement") and Exhibits 3.1 and 3.2
to Post-Effective Amendment No. 1 to the IPO Registration
Statement, as declared effective on May 8, 1998
4.3 -- Bylaws of e-Net, Inc., as amended (incorporated by reference
from Exhibit 3.3 to the IPO Registration Statement)
5.1 -- Opinion of Williams & Connolly regarding legality of
securities being registered
24.1 -- Consent of Grant Thornton LLP
24.2 -- Consent of Williams & Connolly (included in Exhibit 5.1)
25.1 -- Power of Attorney (included on page 6)