As filed with the Securities and Exchange Commission on February 25, 1999
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. 1998 STOCK COMPENSATION 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 1,000,000(1) $ 4.063(2) $4,060,300(2) $1,129
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
(1) The e-Net, Inc. 1998 Stock Compensation Plan, as amended (the "Plan")
authorizes the issuance of a maximum of 1,000,000 shares of common stock, $0.01
par value ("Common Stock"), all of which are being registered hereunder. 480,652
shares of Common Stock authorized to be issued under the Plan are subject to
outstanding options granted under the Plan and 519,348 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 480,652 shares of Common Stock being offered under outstanding
options at a weighted average exercise price of $ 4.7668, and (ii) the 519,348
shares of Common Stock being offered at an exercise price of $ 3.4065, based on
the average of the high and low price per share of the Common Stock on February
23, 1999, as reported in the Nasdaq SmallCap Market.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
We incorporate by reference the following documents that we filed with
the Securities and Exchange Commission (THE "SEC") under the Securities Exchange
Act of 1934 (THE "EXCHANGE ACT"):
- The Annual Report on Form 10-KSB of e-Net, Inc. (THE
"COMPANY"), SEC File No. 000-20865, for the fiscal year ended
March 31, 1998, filed with the SEC on June 30, 1998.
- Amendment No. 1 to Annual Report on Form 10-KSB/A for the
fiscal year ended March 31, 1998, filed with the SEC on August
4, 1998.
- Quarterly Report on Form 10-QSB for the fiscal quarter ended
June 30, 1998, filed with the SEC on August 14, 1998.
- Quarterly Report on Form 10-QSB for the fiscal quarter ended
September 30, 1998, filed with the SEC on October 26, 1998.
- Amendment No. 1 to Quarterly Report on Form 10-QSB/A for the
fiscal quarter ended September 30, 1998, filed with the SEC on
February 1, 1999.
- Quarterly Report on Form 10-QSB for the fiscal quarter ended
December 31, 1998, filed with the SEC on February 12, 1999.
- Current Report on Form 8-K, filed with the SEC on April 23,
1998.
- Current Report on Form 8-K, filed with the SEC on October 26,
1998.
- Current Report on Form 8-K, filed with the SEC on January 29,
1998.
- Preliminary Proxy Statement on Schedule 14A, filed with the
SEC on October 1, 1998.
- Definitive Proxy Statement on Schedule 14A, filed with the SEC
on November 12, 1998.
- Description of the Common Stock contained in Form 8-A
Registration Statement, as amended, filed with the SEC on
February 11, 1997, and all amendments and reports subsequently
filed for the purpose of updating that description.
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We also incorporate by reference all documents that we file with the
SEC under Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, before we
file a post-effective amendment indicating that all securities offered by this
registration statement have been sold or deregistering all securities remaining
unsold.
Any statement contained or 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 it is modified or superceded
by any other statement in this registration statement or in any subsequently
filed document that is incorporated by reference. Any statement modified in this
manner shall not be deemed to be a part of this registration statement, and any
statement superseded in this manner shall not be deemed 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 Restated Certificate of
Incorporation includes a provision that provides that the Company will, to the
fullest extent permitted by applicable law, defend and hold harmless any person
who was or is made or is threatened to be made a party or is otherwise involved
in any action, suit or proceeding, whether civil, criminal, administrative or
investigative (A "PROCEEDING") by reason of the fact that he, or a person for
whom he is a legal representative, is or was a director or officer of the
Company or is or was serving at the request of the Company as a director or
officer of another corporation or of a partnership, joint venture, trust
enterprise or nonprofit entity, including services with respect to employee
benefit plans, against all liability and loss suffered and expenses (including
attorney's fees) reasonably incurred by such person. The Company must indemnify
a person in connection with a Proceeding (or part thereof) he or she initiated
only if the proceeding (or part thereof) was authorized by the Board of
Directors of the Company. To the fullest extent permitted by the Delaware
General Corporation Law (THE "DGCL") as currently in effect or as it may be
amended, a director of the Company shall not be liable to the Company or its
stockholders for monetary damages for the 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 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
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negligence or gross negligence in performance of their duties unless such
conduct falls within an exception under the 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 an 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 Securities
Act of 1933, as amended (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 SEC such indemnification is against public policy as expressed in
the Act and is, therefore, unenforceable.
Item 7. Exemption from Registration.
Not applicable.
Item 8. Exhibits.
4.1 -- e-Net, Inc. 1998 Stock Compensation Plan, as amended
4.2 -- Restated Certificate of Incorporation, filed December 18, 1998
(incorporated by reference from Post-Effective Amendment No. 2
to the Company's Registration Statement on Form S-1, as filed
with the SEC on January 6, 1998, as further amended and
declared effective on January 27, 1999 ("POST-EFFECTIVE
AMENDMENT NO. 2"))
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4.3 -- Restated Bylaws of the Company (incorporated by reference from
Post-Effective Amendment No. 2)
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 7)
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.
(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
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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 February 25,
1999.
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 February 25, 1999
- -----------------------------------------------------
Alonzo E. Short, Jr., Lt. Gen., USA (ret.)
/S/ROBERT A. VESCHI President, Chief Executive February 25, 1999
- -----------------------------------------------------
Robert A. Veschi Officer, Director
/S/DONALD J. SHOFF Chief Financial Officer February 25, 1999
- -----------------------------------------------------
Donald J. Shoff (Chief Accounting Officer)
/S/WILLIAM L. HOOTON Director February 25, 1999
- -----------------------------------------------------
William L. Hooton
/S/CLIVE WHITTENBURY Director February 25, 1999
- -----------------------------------------------------
Clive Whittenbury, Ph.D.
/S/WILLIAM W. ROGERS, JR. Director February 25, 1999
- --------------------------------------------
William W. Rogers, Jr.
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EXHIBIT INDEX
4.1 -- e-Net, Inc. 1998 Stock Compensation Plan, as amended
4.2 -- Restated Certificate of Incorporation, filed December 18, 1998
(incorporated by reference from Post-Effective Amendment No. 2
to the Company's Registration Statement on Form S-1, as filed
with the SEC on January 6, 1998, as further amended and
declared effective on January 27, 1999 ("POST-EFFECTIVE
AMENDMENT NO. 2"))
4.3 -- Restated Bylaws of the Company (incorporated by reference from
Post-Effective Amendment No. 2)
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 7)