SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------
theglobe.com, inc.
(Exact name of registrant as specified in its charter)
DELAWARE 14-1781422
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
110 E. BROWARD BLVD.
14TH FLOOR
FORT LAUDERDALE, FL 33301
(Address of registrant's principal executive offices)
CERTAIN SHARES TO BE ISSUED TO KELLIE SMYTHE PURSUANT TO THE NON-
QUALIFIED STOCK OPTION AGREEMENT DATED JULY 17, 2003
THEGLOBE.COM, INC. 2003 SALES REPRESENTATIVE STOCK OPTION PLAN
(Full title of the plans)
Prentice Hall Corporation System, Inc.
2711 Centerville Road, Suite 400
Wilmington, DE 19808
(Name, address, and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
================================================================================
----------------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of Registration
to be Registered Registered(1) Per Share Offering Price Fee
----------------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.001 500,000 $0.20(2) $100,000 $ 8.09
per share shares
Common Stock, par value $.001 $1.81(3) $1,810,000 $146.43
per share 1,000,000
shares
----------------------------------------------------------------------------------------------------------------------------
Total: 1,500,000 $1,910,000 $154.52
shares
(1) Plus such additional number of shares as may be required in the event
of a stock dividend, stock split, recapitalization or other similar
event in accordance with Rule 416 of the Securities Act of 1933, as
amended (the "Securities Act").
(2) Pursuant to Rule 457(h) of the Securities Act, the maximum price at
which stock options covering the registered shares of Common Stock may
be exercised.
(3) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(h) of the Securities Act based upon the average of
the high and low prices of the Registrant's common stock, par value
$.001 per share, as reported by the Over the Counter Bulletin Board on
December 4, 2003.
PART I
EXPLANATORY NOTE
This Form S-8 Registration Statement relates to:
(i) 500,000 shares of common stock of theglobe.com, inc., par
value $.001 per share (the "Common Stock"), to be issued to
Kellie L. Smythe pursuant to the Non-Qualified Stock Option
Agreement dated July 17, 2003; and
(ii) 1,000,000 shares of Common Stock of theglobe.com, inc., which
may be issued under our 2003 Sales Representative Stock Option
Plan (the "2003 Plan").
The documents containing information specified by Part I of this
Registration Statement will be sent or given to Kellie L. Smythe and to holders
of options granted under the 2003 Plan, as applicable, as specified in Rule
428(b)(1) promulgated by the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act"). Such document(s) are
not required to be filed with the SEC but constitute (along with the documents
incorporated by reference into the Registration Statement pursuant to Item 3 of
Part II hereof) a prospectus that meets the requirements of Section 10(a) of the
Securities Act. In addition, the statement required to be made pursuant to Item
2 of Part I shall be contained in the Section 10(a) prospectus.
Reference herein to "the Company" or "the Registrant" shall mean
theglobe.com, inc., a Delaware corporation.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file at
the SEC's public reference rooms in Washington, D.C., New York, NY and Chicago,
IL. Please call the SEC at 1-800-SEC-0330 for further information on the public
reference rooms. Our SEC filings are also available to the public from the SEC's
web site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" information into this
Registration Statement, which means that we can disclose important information
to you by referring you to another document filed separately with the SEC. The
information incorporated by reference is considered to be part of this
Registration Statement, and later information that we file with the SEC will
automatically update this Registration Statement. We incorporate by reference
the following documents listed below and any future filings made with the SEC
under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), prior to the termination of the offering:
(a) Our Registration Statements on Form S-1, filed with the SEC on
November 12, 1998 and May 19, 1999, in which there are
described the terms, rights and provision applicable to our
outstanding Common Stock; and
(b) Our Annual Report on Form 10-K, filed with the SEC on March
31, 2003 for the fiscal year ended December 31, 2002, as
amended by Form 10-K/A filed with the SEC on September 23,
2003.
(c) Our Quarterly Report on Form 10-QSB filed with the SEC on May
15, 2003 for the quarter ended March 31, 2003.
(d) Our Quarterly Report on Form 10-QSB filed with the SEC on
August 14, 2003 for the quarter ended June 30, 2003.
(e) Our Quarterly Report on Form 10-QSB filed with the SEC on
November 14, 2003 for the quarter ended September 30, 2003
(f) Our Current Reports on Form 8-K filed with the SEC on July 11,
2003, June 6, 2003, April 21, 2003 and March 3, 2003.
(g) Our Current Report on Form 8-K/A filed with the SEC on August
11, 2003.
Item 4. Description of Securities
Not applicable.
Item 5.
Not applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law (the "DGCL")
provides that a corporation may indemnify directors, officers, employees and
other individuals against expenses, judgments, fines and amounts paid in
settlement in connection with specified non-derivative actions, suits,
proceedings or investigations if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation. In addition, with respect to any criminal action or proceeding such
director must have had no reasonable cause to believe that his or her conduct
was unlawful. In the case of derivative actions, a similar standard is
applicable except that indemnification only extends to expenses incurred in
connection with the defense or settlement of such action. In addition, the
statute requires court approval before there can be any indemnification where
the person seeking indemnification has been found liable to the corporation. The
DGCL provides that it is not exclusive of other indemnification that may be
granted by a corporation's charter, by-laws, stockholder or director vote,
agreement or otherwise.
2
Our By-Laws require us to indemnify any person who was or is a party or
is threatened to be made a party to or is involved in any threatened, pending or
completed non-derivative action, suit, arbitration, alternative dispute
mechanism, investigation, administrative hearing or any other proceeding,
brought by reason of the fact that he or she is or was our director or officer,
or while our director or officer is or was serving at our request as a director
or officer of another entity, including service with respect to an employee
benefits plan against expenses, including attorneys' fees, judgments, fines,
excise taxes under ERISA, penalties and amounts paid in settlement, incurred by
him or her in connection with such action, suit or proceeding if he or she acted
in good faith and in a manner he or she reasonably believed to be in or not
opposed to our best interests. In addition, with respect to any criminal action
or proceeding such person shall have had no reasonable cause to believe his or
her conduct was unlawful.
Section 102(b)(7) of the DGCL permits a corporation to provide that a
director shall not be personally liable to the corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director, except for
liability for (i) any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
payment of unlawful dividends or unlawful stock purchases or redemptions or (iv)
any transaction from which the director derived an improper personal benefit.
Our Charter provides that to the fullest extent that the DGCL permits,
our directors will not be liable to us or our stockholders for monetary damages
for breach of fiduciary duty as a director. Any amendment to or repeal of our
Charter inconsistent with these provisions will not adversely affect any right
of our director and officers arising in connection with the service of such
directors and officers to the fullest extent permitted by Delaware law.
We have entered into indemnification agreements with our directors and
officers. These agreements provide that we will indemnify such directors and
officers for any amounts paid in settlement or incurred by, or assessed against,
such directors and officers arising in connection with the service of such
directors and officers to the fullest extent permitted by Delaware law.
We maintain directors' and officers' liability insurance. This
insurance provides for payment, on behalf of our and our subsidiaries' directors
and officers, of certain losses of such persons arising from claims, including
claims arising under the Securities Act, for acts or omissions by such person
while acting as a director or officer.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
EXHIBIT NO. DESCRIPTION OF EXHIBITS
4.1 Form of Fourth Amended and Restated Certificate of
Incorporation of the Company previously filed as Exhibit 3.1
to the Company's Registration Statement No. 333-59751 on Form
S-1/A and incorporated herein by reference.
4.2 Certificate of Amendment to Fourth Amended and Restated
Certificate of Incorporation of the Company
3
4.3 Form of By-Laws of the Company previously filed as Exhibit 3.2
to the Company's Registration Statement No. 333-59751 on Form
S-1, and incorporated herein by reference.
4.4* Amended & Restated Nonqualified Stock Option Agreement with
Kellie L. Smythe
4.5* Form of thegloble.com, inc. 2003 Sales Representative Stock
Option Plan
5.1* Opinion of Proskauer Rose LLP
23.1 Consent of Proskauer Rose LLP (included in Exhibit 5.1)
23.2* Consent of KPMG LLP (independent public accountants)
23.3* Consent of Rachlin Cohen & Holtz LLP
24* Power of Attorney (contained on the signature page hereto)
-------------------
* filed herewith
Item 9. Undertakings
The Company hereby undertakes:
(a) 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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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 this Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
this Registration Statement or any material change to
such information in this Registration Statement;
provided, however, that paragraphs (i) and (ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registrations Statement.
(b) 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 to be the initial bona
fide offering thereof.
4
(c) 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.
(d) That, for the purpose of determining any liability under the
Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act
that is incorporated by reference in this 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.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the provisions described in Item 6 of this Registration
Statement, or otherwise, the Company has been 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 Company
of expenses incurred or paid by a director, officer or controlling person of the
Company 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 Company 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 and will be governed by
the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable ground 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 Fort Lauderdale, State of Florida, on December 10,
2003.
theglobe.com, inc.
By: /s/ Robin M. Segaul Lebowitz
------------------------------------
Robin M. Segaul Lebowitz,
Chief Financial Officer, Secretary
and Treasurer (Principal Financial and
Accounting Officer)
5
POWER OF ATTORNEY
KNOW BY ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of theglobe.com, inc., a
Delaware corporation, do hereby constitute and appoint Robin M. Segaul Lebowitz
the lawful attorney-in-fact and agent with full power and authority to do any
and all acts and things and to execute any and all instruments which said
attorney and agent determines may be necessary or advisable or required to
enable said corporation to comply with the Securities Act and any rules or
regulations or requirements of the SEC in connection with this Registration
Statement. Without limiting the generality of the foregoing power and authority,
the powers granted include the power and authority to sign the names of the
undersigned officers and directors in the capacities indicated below to this
Registration Statement, to any and all amendments, both pre-effective and
post-effective, and supplements to this Registration Statement, and to any and
all instruments or documents filed as part of or in conjunction with this
Registration Statement or amendments or supplements thereof, and each of the
undersigned hereby ratifies and confirms that said attorney and agent shall do
or cause to be done by virtue hereof. This Power of Attorney may be signed in
several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following person in the capacities and on
the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Michael. S. Egan Chairman and Director December 10, 2003
--------------------
Michael S. Egan
/s/ Michael S. Egan Chief Executive Officer December 10, 2003
------------------- (Principal Executive Officer) and
Michael S. Egan Director
/s/ Edward A. Cespedes President and Director December 10, 2003
----------------------
Edward A. Cespedes
/s/ Robin M. Segaul-Lebowitz Chief Financial Officer, December 10, 2003
---------------------------- Secretary and Treasurer (Principal
Robin Segaul-Lebowitz Financial and Accounting Officer)
and Director
6
Index to Exhibits
EXHIBIT NO. DESCRIPTION OF EXHIBITS
4.1 Form of Fourth Amended and Restated Certificate of
Incorporation of the Company previously filed as Exhibit 3.1
to the Company's Registration Statement No. 333-59751 on Form
S-1, and incorporated herein by reference.
4.2 Certificate of Amendment to Fourth Amended and Restated
Certificate of Incorporation of the Company
4.3 Form of By-Laws of the Company previously filed as Exhibit 3.2
to the Company's Registration Statement No. 333-59751 on Form
S-1, and incorporated herein by reference.
4.4* Amended & Restated Nonqualified Stock Option Agreement with
Kellie L. Symthe
4.5* Form of theglobe.com, inc. 2003 Sales Representative Stock
Option Plan
5.1* Opinion of Proskauer Rose LLP
23.1 Consent of Proskauer Rose LLP (included in Exhibit 5.1)
23.2* Consent of KPMG LLP (independent public accountants)
23.3* Consent of Rachlin Cohen & Holtz LLP
24* Power of Attorney (contained on the signature page hereto)
-------------
* filed herewith
7