U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
IBIZ TECHNOLOGY CORP.
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(Exact Name of Registrant as Specified in its Charter)
Florida 86-0933890
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(State of Incorporation) (I.R.S. Employer ID No.)
2238 West Lone Cactus, Phoenix, Arizona 85027
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(Address of principal executive offices)
Non-Employee Directors and Consultants Retainer Stock Plan
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(Full title of the Plan)
Kenneth W. Schilling, President
IBIZ Technology Corp.
2238 West Lone Cactus Drive, Suite 200
Phoenix, Arizona 85021
(623) 492-9200 . (Name, address, and
telephone number of agent for service)
With a copy to:
Brian F. Faulkner, A Professional Law Corporation,
27127 Calle Arroyo, Suite 1923,
San Juan Capistrano, California 92675
(949) 240-1361
CALCULATION OF REGISTRATION FEE
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Title of Securities to Amount to be Proposed Maximum Proposed Aggregate Amount of
be Registered Registered Offering Price Per Offering Price Registration Fee
Share
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Common Stock 50,000,000 $0.001 (1) $50,000 $4.60
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(1) This offering price per share is calculated under Rule 457(h)(1) pursuant to
the deemed issuance price as set forth in this plan (see Exhibit 4 to this Form
S-8).
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
See Item 2 below.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The documents containing the information specified in Part I, Items 1
and 2 will be delivered to each of the participants in accordance with Form S-8
and Rule 428 promulgated under the Securities Act of 1933. The participants
shall be provided a written statement notifying them that upon written or oral
request they will be provided, without charge, (a) the documents incorporated by
reference in Item 3 of Part II of the registration statement, and (b) other
documents required to be delivered pursuant to Rule 428(b). The statement will
inform the participants that these documents are incorporated by reference in
the Section 10(a) prospectus, and shall include the address (giving title or
department) and telephone number to which the request is to be directed.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following are hereby incorporated by reference:
(a) The Registrant's latest annual report on Form 10-KSB for the fiscal
year ended October 31, 2002, filed on February 13, 2003.
(b) 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 financial
statements contained in the Form 10-KSB referred to in (a) above, which
consist of a Form 10-QSB filed on March 14, 2003, and a Form 10-QSB
filed on June 16, 2003.
(c) A description of the securities of the Registrant is contained in a
Form SB-2 filed on March 14, 2003.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Securities Exchange Act of 1934, 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 in the registration statement and to
be part thereof from the date of filing of such documents.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Other than as set forth below, no named expert or counsel was hired on
a contingent basis, will receive a direct or indirect interest in the small
business issuer, or was a promoter, underwriter, voting trustee, director,
officer, or employee of the Registrant.
Brian F. Faulkner, A Professional Law Corporation, counsel for the
Registrant as giving an opinion on the validity of the securities being
registered, will be receiving 5,000,000 shares of common stock of the
Registrant. These shares will be paid pursuant to the Registrant's Non-Employee
Directors and Consultants Retainer Stock Plan under this Form S-8 in exchange
for legal services previously rendered, or to be rendered, under an
attorney-client contract. These legal services consist of advice and preparation
work in connection with reports of the Registrant under the Securities Exchange
Act of 1934, and other general corporate and securities work for the company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
LIMITATION OF LIABILITY.
(a) ARTICLES OF INCORPORATION AND BYLAWS.
The articles of incorporation of the Registrant contain the following
provisions with respect to liability of directors and officers:
"To the fullest extent permitted by law, no director or officer of the
Corporation shall be personally liable to the Corporation or its shareholders
for damages for breach of any duty owed to the Corporation or its shareholders.
In addition, the Corporation shall have the power, in its By-Laws or in any
resolution of its stockholders or directors, to undertake to indemnify the
officers and directors of this corporation against any contingency or peril as
may be determined to be in the best interests of this corporation, and in
conjunction therewith, to procure, at this corporation's expense, policies of
insurance."
(b) FLORIDA STATUTES.
"FLORIDA STATUTE 607.0831 LIABILITY OF DIRECTORS.
(1) A director is not personally liable for monetary damages to the
corporation or any other person for any statement, vote, decision, or failure to
act, regarding corporate management or policy, by a director, unless:
(a) The director breached or failed to perform his or her duties as a
director; and
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(b) The director's breach of, or failure to perform, those duties
constitutes:
1. A violation of the criminal law, unless the director had
reasonable cause to believe his or her conduct was lawful or
had no reasonable cause to believe his or her conduct was
unlawful. A judgment or other final adjudication against a
director in any criminal proceeding for a violation of the
criminal law estops that director from contesting the fact
that his or her breach, or failure to perform, constitutes a
violation of the criminal law; but does not estop the director
from establishing that he or she had reasonable cause to
believe that his or her conduct was lawful or had no
reasonable cause to believe that his or her conduct was
unlawful;
2. A transaction from which the director derived an improper
personal benefit, either directly or indirectly;
3. A circumstance under which the liability provisions of
section 607.0834 are applicable;
4. In a proceeding by or in the right of the corporation to
procure a judgment in its favor or by or in the right of a
shareholder, conscious disregard for the best interest of the
corporation, or willful misconduct; or
5. In a proceeding by or in the right of someone other than
the corporation or a shareholder, recklessness or an act or
omission which was committed in bad faith or with malicious
purpose or in a manner exhibiting wanton and willful disregard
of human rights, safety, or property.
(2) For the purposes of this section, the term "recklessness" means the
action, or omission to act, in conscious disregard of a risk:
(a) Known, or so obvious that it should have been known, to the
director; and
(b) Known to the director, or so obvious that it should have been
known, to be so great as to make it highly probable that harm would
follow from such action or omission.
(3) A director is deemed not to have derived an improper personal
benefit from any transaction if the transaction and the nature of any personal
benefit derived by the director are not prohibited by state or federal law or
regulation and, without further limitation:
(a) In an action other than a derivative suit regarding a decision by
the director to approve, reject, or otherwise affect the outcome of an
offer to purchase the stock of, or to effect a merger of, the
corporation, the transaction and the nature of any personal benefits
derived by a director are disclosed or known to all directors voting on
the matter, and the transaction was authorized, approved, or ratified
by at least two directors who comprise a majority of the disinterested
directors (whether or not such disinterested directors constitute a
quorum);
(b) The transaction and the nature of any personal benefits derived by
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a director are disclosed or known to the shareholders entitled to vote,
and the transaction was authorized, approved, or ratified by the
affirmative vote or written consent of such shareholders who hold a
majority of the shares, the voting of which is not controlled by
directors who derived a personal benefit from or otherwise had a
personal interest in the transaction; or
(c) The transaction was fair and reasonable to the corporation at the
time it was authorized by the board, a committee, or the shareholders,
notwithstanding that a director received a personal benefit.
(4) The circumstances set forth in subsection (3) are not exclusive and
do not preclude the existence of other circumstances under which a director will
be deemed not to have derived an improper benefit."
INDEMNIFICATION.
(a) ARTICLES OF INCORPORATION AND BYLAWS.
The articles of incorporation of the Registrant contain the following
provisions with respect to indemnification:
"This corporation shall have the power, in its By-Laws or in any
resolution of its stockholders or directors, to undertake to indemnify the
officers and directors of this corporation against any contingency or peril as
may be determined to be in the best interests of this corporation, and in
conjunction therewith, to procure, at this corporation's expense, policies of
insurance."
(b) FLORIDA STATUTES.
"FLORIDA STATUTE 607.0850 INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES, AND
AGENTS.
(1) A corporation shall have power to indemnify any person who was or
is a party to any proceeding (other than an action by, or in the right of, the
corporation), by reason of the fact that he or she is or was a director,
officer, employee, or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise against
liability incurred in connection with such proceeding, including any appeal
thereof, if he or she acted in good faith and in a manner he or she reasonably
believed to be in, or not opposed to, the best interests of the corporation and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his or her conduct was unlawful. The termination of any proceeding by
judgment, order, settlement, or conviction or upon a plea of nolo contendere or
its equivalent shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he or she reasonably believed to be
in, or not opposed to, the best interests of the corporation or, with respect to
any criminal action or proceeding, had reasonable cause to believe that his or
her conduct was unlawful.
(2) A corporation shall have power to indemnify any person, who was or
is a party to any proceeding by or in the right of the corporation to
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procure a judgment in its favor by reason of the fact that the person is or was
a director, officer, employee, or agent of the corporation or is or was serving
at the request of the corporation as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other enterprise,
against expenses and amounts paid in settlement not exceeding, in the judgment
of the board of directors, the estimated expense of litigating the proceeding to
conclusion, actually and reasonably incurred in connection with the defense or
settlement of such proceeding, including any appeal thereof. Such
indemnification shall be authorized if such person acted in good faith and in a
manner he or she reasonably believed to be in, or not opposed to, the best
interests of the corporation, except that no indemnification shall be made under
this subsection in respect of any claim, issue, or matter as to which such
person shall have been adjudged to be liable unless, and only to the extent
that, the court in which such proceeding was brought, or any other court of
competent jurisdiction, shall determine upon application that, despite the
adjudication of liability but in view of all circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
such court shall deem proper.
(3) To the extent that a director, officer, employee, or agent of a
corporation has been successful on the merits or otherwise in defense of any
proceeding referred to in subsection (1) or subsection (2), or in defense of any
claim, issue, or matter therein, he or she shall be indemnified against expenses
actually and reasonably incurred by him or her in connection therewith.
(4) Any indemnification under subsection (1) or subsection (2), unless
pursuant to a determination by a court, shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of the
director, officer, employee, or agent is proper in the circumstances because he
or she has met the applicable standard of conduct set forth in subsection (1) or
subsection (2). Such determination shall be made:
(a) By the board of directors by a majority vote of a quorum consisting
of directors who were not parties to such proceeding;
(b) If such a quorum is not obtainable or, even if obtainable, by
majority vote of a committee duly designated by the board of directors
(in which directors who are parties may participate) consisting solely
of two or more directors not at the time parties to the proceeding;
(c) By independent legal counsel:
1. Selected by the board of directors prescribed in paragraph
(a) or the committee prescribed in paragraph (b); or
2. If a quorum of the directors cannot be obtained for
paragraph (a) and the committee cannot be designated under
paragraph (b), selected by majority vote of the full board of
directors (in which directors who are parties may
participate); or
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(d) By the shareholders by a majority vote of a quorum consisting of
shareholders who were not parties to such proceeding or, if no such
quorum is obtainable, by a majority vote of shareholders who were not
parties to such proceeding.
(5) Evaluation of the reasonableness of expenses and authorization of
indemnification shall be made in the same manner as the determination that
indemnification is permissible. However, if the determination of permissibility
is made by independent legal counsel, persons specified by paragraph (4)(c)
shall evaluate the reasonableness of expenses and may authorize indemnification.
(6) Expenses incurred by an officer or director in defending a civil or
criminal proceeding may be paid by the corporation in advance of the final
disposition of such proceeding upon receipt of an undertaking by or on behalf of
such director or officer to repay such amount if he or she is ultimately found
not to be entitled to indemnification by the corporation pursuant to this
section. Expenses incurred by other employees and agents may be paid in advance
upon such terms or conditions that the board of directors deems appropriate.
(7) The indemnification and advancement of expenses provided pursuant
to this section are not exclusive, and a corporation may make any other or
further indemnification or advancement of expenses of any of its directors,
officers, employees, or agents, under any bylaw, agreement, vote of shareholders
or disinterested directors, or otherwise, both as to action in his or her
official capacity and as to action in another capacity while holding such
office. However, indemnification or advancement of expenses shall not be made to
or on behalf of any director, officer, employee, or agent if a judgment or other
final adjudication establishes that his or her actions, or omissions to act,
were material to the cause of action so adjudicated and constitute:
(a) A violation of the criminal law, unless the director, officer,
employee, or agent had reasonable cause to believe his or her conduct
was lawful or had no reasonable cause to believe his or her conduct was
unlawful;
(b) A transaction from which the director, officer, employee, or agent
derived an improper personal benefit;
(c) In the case of a director, a circumstance under which the liability
provisions of section 607.0834 are applicable; or
(d) Willful misconduct or a conscious disregard for the best interests
of the corporation in a proceeding by or in the right of the
corporation to procure a judgment in its favor or in a proceeding by or
in the right of a shareholder.
(8) Indemnification and advancement of expenses as provided in this
section shall continue as, unless otherwise provided when authorized or
ratified, to a person who has ceased to be a director, officer, employee, or
agent and shall inure to the benefit of the heirs, executors, and administrators
of such a person, unless otherwise provided when authorized or ratified.
(9) Unless the corporation's articles of incorporation provide
otherwise, notwithstanding the failure of a corporation to provide
indemnification, and despite any contrary determination of the board or of the
shareholders in the specific case, a director, officer, employee, or agent of
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the corporation who is or was a party to a proceeding may apply for
indemnification or advancement of expenses, or both, to the court conducting the
proceeding, to the circuit court, or to another court of competent jurisdiction.
On receipt of an application, the court, after giving any notice that it
considers necessary, may order indemnification and advancement of expenses,
including expenses incurred in seeking court-ordered indemnification or
advancement of expenses, if it determines that:
(a) The director, officer, employee, or agent is entitled to mandatory
indemnification under subsection (3), in which case the court shall
also order the corporation to pay the director reasonable expenses
incurred in obtaining court-ordered indemnification or advancement of
expenses;
(b) The director, officer, employee, or agent is entitled to
indemnification or advancement of expenses, or both, by virtue of the
exercise by the corporation of its power pursuant to subsection (7); or
(c) The director, officer, employee, or agent is fairly and reasonably
entitled to indemnification or advancement of expenses, or both, in
view of all the relevant circumstances, regardless of whether such
person met the standard of conduct set forth in subsection (1),
subsection (2), or subsection (7).
(10) For purposes of this section, the term "corporation" includes, in
addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger, so that
any person who is or was a director, officer, employee, or agent of a
constituent corporation, or is or was serving at the request of a constituent
corporation as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise, is in the same position
under this section with respect to the resulting or surviving corporation as he
or she would have with respect to such constituent corporation if its separate
existence had continued.
(11) For purposes of this section:
(a) The term "other enterprises" includes employee benefit plans;
(b) The term "expenses" includes counsel fees, including those for
appeal;
(c) The term "liability" includes obligations to pay a judgment,
settlement, penalty, fine (including an excise tax assessed with
respect to any employee benefit plan), and expenses actually and
reasonably incurred with respect to a proceeding;
(d) The term "proceeding" includes any threatened, pending, or
completed action, suit, or other type of proceeding, whether civil,
criminal, administrative, or investigative and whether formal or
informal;
(e) The term "agent" includes a volunteer;
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(f) The term "serving at the request of the corporation" includes any
service as a director, officer, employee, or agent of the corporation
that imposes duties on such persons, including duties relating to an
employee benefit plan and its participants or beneficiaries; and
(g) The term "not opposed to the best interest of the corporation"
describes the actions of a person who acts in good faith and in a
manner he or she reasonably believes to be in the best interests of the
participants and beneficiaries of an employee benefit plan.
(12) A corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee, or agent of
the corporation or is or was serving at the request of the corporation as a
director, officer, employee, or agent of another corporation, partnership, joint
venture, trust, or other enterprise against any liability asserted against the
person and incurred by him or her in any such capacity or arising out of his or
her status as such, whether or not the corporation would have the power to
indemnify the person against such liability under the provisions of this
section."
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibits required by Item 601 of Regulation S-B, and an index
thereto, are attached.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this 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;
(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) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report pursuant
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to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to 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.
(e) 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 are 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
(h) That 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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
authorize, in the City of Phoenix, State of Arizona, on July 24, 2003.
IBIZ TECHNOLOGY CORP.
By: /s/ Kenneth W. Schilling
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Kenneth W. Schilling, President
SPECIAL POWER OF ATTORNEY
The undersigned constitute and appoint Kenneth W. Schilling their true
and lawful attorney-in-fact and agent with full power of substitution, 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 Form S-8
Registration Statement, and to file the same with all exhibits thereto, and all
documents in connection therewith, with the U.S. Securities and Exchange
Commission, granting such attorney-in-fact the 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 and to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that such
attorney-in-fact 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 date indicated:
Signature Title Date
- -------------------------- -------------------------------------- --------------
/s/ Kenneth W. Schilling President (acting principal financial July 24, 2003
- ------------------------ and accounting officer)/Director
Kenneth W. Schilling
/s/ Mark H. Perkins Executive Vice President of July 24, 2003
- ------------------- Operations/Director
Mark H. Perkins
EXHIBIT INDEX
Number Description
4 Non-Employee Directors and Consultants Retainer Stock Plan,
dated July 18, 2003 (see below).
5 Opinion Re: Legality (see below).
23.1 Consent of Accountants (see below).
23.2 Consent of Accountants (see below).
23.3 Consent of Counsel (see below).
24 Special Power of Attorney (see signature page).