U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
IBIZ TECHNOLOGY CORP.
(Exact Name of Registrant as Specified in its Charter)
Florida 86-0933890
- ------------------------ ------------------------
(State of Incorporation) (I.R.S. Employer ID No.)
2238 West Lone Cactus, Phoenix, Arizona 85027
(Address of principal executive offices)
2003 Stock Incentive Plan
(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:
Darrin Ocasio, Esq.
Sichenzia Ross Friedman Ference LLP
1065 Avenue of Americas
New York, NY 10018
(212)-930-9700
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 22,000,000 $0.0037 (1) $81,400 $6.60
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
(1) Estimated solely for the purpose of determining the amount of registration
fee and pursuant to Rules 457(c) and 457 (h) of the General Rules and
Regulations under the Securities Act of 1993, based upon the average of the high
and low selling prices per share of Common Stock of iBIZ Technology Corp. on
October 28, 2003.
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, a Form 10-QSB filed on June 16, 2003, and a Form
10-QSB filed on September 15, 2003.
(c) the Company's Form SB-2, filed on May 7, 2003.
(d) the Company's Definitive Proxy filed on September 22, 2003.
(e) 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.
Gregory Sichenzia, Esq., counsel for the Registrant as giving an opinion on the
validity of the securities being registered, will be receiving 10,000,000 shares
of common stock of the Registrant. These shares will be paid pursuant to the
2003 Stock Incentive 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
litigation matters, 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 October 29, 2003.
IBIZ TECHNOLOGY CORP.
By: /s/ Kenneth W. Schilling
-------------------------
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 October 29, 2003
- ------------------------ and accounting officer)/Director
Kenneth W. Schilling
/s/ Mark H. Perkins Executive Vice President of October 29, 2003
- ------------------- Operations/Director
Mark H. Perkins
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EXHIBIT INDEX
Number Description
4 2003 Stock Incentive Plan (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).
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