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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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PFSWEB, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 75-2837058
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
500 NORTH CENTRAL EXPRESSWAY, PLANO, TEXAS 75074
(Address of principal executive offices) (Zip Code)
2000 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
MARK C. LAYTON
PFSweb, INC.
500 NORTH CENTRAL EXPRESSWAY
PLANO, TEXAS 75074
(Name and address of agent for service)
(972) 881-2900
(Telephone number, including area code of agent for service)
copy to:
MORRIS BIENENFELD, ESQ.
WOLFF & SAMSON
5 BECKER FARM ROAD
ROSELAND, NJ 07068
(973) 533-6532
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered (1) Per Share (2) Price (2) Fee (2)
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Common Stock, 250,000 $ 2.56 $ 640,625 $169.13
par value $.001
per share
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(1) Pursuant to Rule 416 under the Securities Act of 1933, as
amended (the "Securities Act"), this Registration Statement
also covers such additional shares as may hereafter be offered
or issued to prevent dilution resulting from stock splits,
stock dividends or similar transactions.
(2) The aggregate offering price and the registration fee have
been computed pursuant to Rule 457 under the Securities Act
upon the basis of $2.56 per share, being the average of high
and low prices of Common Stock reported on the Nasdaq National
Market on September 18, 2000.
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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") are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
March 31, 2000.
2. The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 2000.
3. All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since March 31, 2000.
4. The description of the Company's common stock, par value $.001 per
share, contained in the Company's Registration Statement on Form 8-A dated
November 24, 1999 as filed with the Commission (File No. 000-28275).
All documents filed by the Company after the date hereof 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 have been sold or which deregisters
all securities then remaining unsold, shall be deemed incorporated by reference
herein and to be a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is organized under the laws of the State of Delaware. The
Delaware General Corporation Law, as amended (the "Act"), provides that a
Delaware corporation has the power generally to indemnify its directors,
officers, employees and other agents (each, a "Corporate Agent") against
expenses and liabilities (including amounts paid in settlement) in connection
with any proceeding involving such person by reason of his being a Corporate
Agent, other than a proceeding by or in the right of the corporation, if such
person acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation and, with respect to any
criminal proceeding, such person had no reasonable cause to believe his conduct
was unlawful. In the case of an action brought by or in the right of the
corporation, indemnification of a Corporate Agent against expenses is permitted
if such person acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the corporation, however, no
indemnification is permitted in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation,
unless and only to the extent that the Court of Chancery or the court in which
such proceeding was brought shall determine upon application that despite the
adjudication of liability, but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to such indemnification. To the
extent that a Corporate Agent has been successful on the merits of such
proceeding, whether or not by or in the right of the corporation, or in the
defense of any claim, issue or matter therein, the corporation is required to
indemnify the Corporate Agent for expenses in connection therewith. Expenses
incurred by a Corporate Agent in connection with a proceeding may, under certain
circumstances, be paid by the corporation in advance of the final disposition of
the proceeding as authorized by the board of directors. The power to indemnify
and advance expenses under the Act does not exclude other rights to which a
Corporate Agent may be entitled to under the certificate of incorporation,
bylaws, agreement, vote of stockholders or disinterested directors or otherwise.
Under the Act, a Delaware corporation has the power to purchase and
maintain insurance on behalf of any Corporate Agent against any liabilities
asserted against and incurred by him in such capacity, whether or not the
corporation has the power to indemnify him against such liabilities under the
Act.
As permitted by the Act, the Company's Certificate of Incorporation
contains provisions which limit the personal liability of directors for monetary
damages for breach of fiduciary duties as directors except to the extent such
limitation of liability is prohibited by the Act. In accordance with the
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Act, these provisions do not limit the liability of any director for any breach
of the director's duty of loyalty to the Company or its stockholders; for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, for certain unlawful payments of dividends or stock
repurchases under Section 174 of the Act; or for any transaction from which the
director derives an improper personal benefit. These provisions do not limit the
rights of the Company or any stockholder to seek an injunction or any other
non-monetary relief in the event of a breach of a director's fiduciary duty. In
addition, these provisions apply only to claims against a director arising out
of his role as a director and do not relieve a director from liability for
violations of statutory law, such as certain liabilities imposed on a director
under the federal securities laws.
In addition, the Company's Certificate of Incorporation and By-laws
provide for the indemnification of Corporate Agents for certain expenses,
judgments, fines and payments incurred by them in connection with the defense or
settlement of claims asserted against them in their capacities as Corporate
Agents to the fullest extent authorized by the Act. The Company seeks to limit
its exposure to liability for indemnification of directors and officers by
purchasing directors and officers liability insurance coverage.
Reference is made to Sections 102(b)(7) and 145 of the Act in
connection with the above summary of indemnification, insurance and limitation
of liability.
The purpose of these provisions is to assist the Company in retaining
qualified individuals to serve as officers, directors or other Corporate Agents
of the Company by limiting their exposure to personal liability for serving as
such.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
The following are filed as exhibits to this registration statement.
Exhibit Description
5 Opinion of Wolff & Samson, Counsel to the Company
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Wolff & Samson (included in Exhibit No. 5)
24 Power of Attorney (included on the signature page)
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 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, 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 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, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of any employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this registration statement relating to the
securities offered therein, and the offering of such securities at the time
shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been
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advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities 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
THE REGISTRANT
Pursuant to the requirements of the Securities Act, 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 Plano, State of Texas on September 19, 2000.
PFSweb, INC.
By: /s/ Thomas J. Madden
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Thomas J. Madden, Executive Vice
President and Chief Financial and
Accounting Officer
Each person whose signature to this Registration Statement appears
below hereby appoints Thomas J. Madden and Harvey Achatz, or either of them, as
his attorney-in-fact to sign on his behalf individually and in the capacity
stated below and to file all amendments and post-effective amendments to this
Registration Statement, and any and all instruments or documents filed as a part
of or in connection with this Registration Statement or the amendments thereto,
and the attorney-in-fact, or either of them, may make such changes and additions
to this Registration Statement as the attorney-in-fact, or either of them, may
deem necessary or appropriate.
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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
--------- ----- ----
By: /s/ Mark C. Layton Chairman of the September 19,
---------------------- Board, President, and 2000
Mark C. Layton Chief Executive
Officer (Principal
Executive Officer)
By:/s/ Thomas J. Madden Executive Vice September 19,
----------------------- President and Chief 2000
Thomas J. Madden Financial and
Accounting Officer
(Principal Financial
Officer and Principal
Accounting Officer)
By: /s/ Christopher Yates Director September 19,
--------------------- 2000
Christopher Yates
By: /s/ James R. Powell Director September 19,
------------------- 2000
James R. Powell
By: /s/ Timothy M. Murray Director September 19,
---------------------- 2000
Timothy M. Murray
By: /s/ James R. Reilly Director September 19,
--------------------- 2000
James R. Reilly
By: /s/ Peter P.J. Vikanis Director September 19,
---------------------- 2000
Peter P.J. Vikanis
By: /s/ Dr. Neil W. Jacobs Director September 19,
---------------------- 2000
Dr. Neil W. Jacobs
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INDEX TO EXHIBITS
Exhibit
Number Description
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5 Opinion of Wolff & Samson, Counsel to the Company
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Wolff & Samson (included in Exhibit No. 5)
24 Power of Attorney (included on the signature page)
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EXHIBIT 5
[WOLFF & SAMSON, P.A. LETTERHEAD]
September 19, 2000
PFSweb, Inc.
500 North Central Expressway
Plano, Texas 75074
Gentlemen:
We have acted as counsel to PFSweb, Inc., a Delaware corporation (the
"Company"), in connection with the preparation and filing by the Company of a
Registration Statement on Form S-8 (the "Registration Statement") relating to
the issuance of up to 250,000 shares of Common Stock, par value $.001 per share,
of the Company (the "Shares") pursuant to the terms of the Company's 2000
Employee Stock Purchase Plan (the "Plan").
We have examined copies of the Certificate of Incorporation and By-Laws of
the Company, each as amended, the Registration Statement, the Plan and such
other corporate records and documents as we deemed necessary to form the basis
for the opinion hereinafter expressed. In our examination of such material, we
have assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as originals and the conformity to original documents
of all copies submitted to us. As to various questions of fact material to such
opinion, we have relied upon statements and certificates of officers and
representatives of the Company and others.
Based upon the foregoing,
we are of the opinion that all of the Shares have
been duly authorized and, when issued and sold in accordance with the terms
described in the Plan, will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit hereby that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933 or the rules and regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
/s/ WOLFF & SAMSON, P.A.
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated May 4, 2000
(except with respect to the matters discussed in Note 11, as to which the date
is June 8, 2000), included in PFSweb, Inc.'s Form 10-K for the year ended March
31, 2000, and to all references to our Firm included in this registration
statement.
Dallas, Texas /s/ ARTHUR ANDERSEN LLP
September 19, 2000
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