U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
INTERNET BUSINESS INTERNATIONAL, INC.
(Exact name of registrant as specified in charter)
Nevada 33-0845463
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
Marc R. Tow, Esq.
2250 East Tropicana, Suite 19-309 Marc R. Tow & Associates APC
Suite 101 3900 Birch Street, Suite 113
Las Vegas, Nevada 89119 Newport Beach, CA 92660
(775) 588-2387 (949) 975-0544
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(Address and telephone number of (Name, address and telephone
Registrant's Principal Executive Offices) number of agent for service)
2003 EMPLOYEES AND CONSULTANTS PLAN III
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(Full title of the plan)
Copies of all communications to:
Marc R. Tow & Associates, APC
3900 Birch Street, Suite 113
Newport Beach, California 92660
Telephone (949) 975-0544
Facsimile (949) 975-0547
Calculation of Registration Fee
Title of Proposed maximum
securities to be Amount to be offering price per Proposed maximum Amount of
registered registered share offering price registration fee
Common Stock, par
value $0.001. . . 80,000,000(1) $ 0.0015(2) $ 120,000(2) $ 9.75
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein.
(2) The proposed maximum offering price per share of Common Stock and the
proposed maximum aggregate offering price are calculated solely for the purpose
of determining the registration fee pursuant to Rule 457(h) under the Securities
Act of 1933. The fee for the shares being registered is based upon the closing
bid price of the Common Stock on November 28, 2003, as reported on the OTC
Bulletin Board.
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TABLE OF CONTENTS
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PART I INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
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Item 1. Plan Information
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Item 2. Registrant Information and Employee Plan Annual Information
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PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3. Incorporation of Documents by Reference
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Item 4. Description of Securities
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Item 5. Interests of Named Experts and Counsel
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Item 6. Indemnification of Directors and Officers
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Item 7. Exemption for Registration Claimed
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Item 8. Exhibits
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Item 9. Undertakings
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SIGNATURES
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EXHIBIT 4
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EXHIBIT 5
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EXHIBIT 23.1
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EXHIBIT 23.2
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EXHIBIT 24
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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, (i) the documents incorporated by
reference in Item 3 of Part II of the registration statement, and (ii) 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.
A copy of any document or part hereof incorporated by reference in this
Registration Statement but not delivered with this Prospectus or any document
required to be delivered pursuant to Rule 428(b) under the Securities Act will
be furnished without charge upon written or oral request. Requests should be
addressed to 2250 East Tropicana, Suite 19-309 Las Vegas, Nevada 89119
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the Company under the Securities Exchange Act
of 1934 (the "Exchange Act") are incorporated herein by reference:
(a) The Registrant's latest annual report on Form 10-KSB and any amendments
thereto for the fiscal year ended June 30, 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 10KSB and any amendments thereto referred to in (a) above.
In addition, all documents subsequently filed 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 into this registration statement and to be a
part hereof from the date of filing of such documents.
Any statement contained in a document incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained in a subsequently filed document which
is also incorporated by reference herein modified or superseded such statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
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.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The articles of incorporation of the Registrant provide the following with
regard to liability:
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"No Director of this Corporation shall have personal liability to the
Corporation or any of its stockholders for monetary damages for breach of
fiduciary duty as a Director or officer involving any act or omission of any
such Director or officer. The foregoing provision shall not eliminate or limit
the liability of a Director (i) for any breach of the Director's duty of loyalty
to the Corporation or its stockholders, (ii) for acts or omissions not in good
faith or, which involve intentional misconduct or a knowing violation of law,
(iii) under applicable Sections of the Nevada Revised Statutes, (iv) the payment
of dividends in violation of Section 78.300 of the Nevada Revised Statutes or,
(v) for any transaction from which the Director derived an improper personal
benefit. Any repeal or modification of this Article by the stockholders of the
Corporation shall be prospective only and shall not adversely affect any
limitation on the personal liability of a Director or officer of the Corporation
for acts or omissions prior to such repeal or modification."
Indemnification.
(a) Bylaws.
Article V of the bylaws of the Registrant provides as follows:
Section 1. Definitions. For purposes of this Article, "Indemnitee" shall
mean each Director or Officer who was or is a party to, or is threatened to be
made a party to, or is otherwise involved in, any Proceeding (as hereinafter
defined), by reason of the fact that he or she is or was a Director or Officer
of this Corporation or is or was serving in any capacity at the request of this
Corporation as a Director, Officer, employee, agent, partner, or fiduciary of,
or in any other capacity for, another corporation, partnership, joint venture,
trust, or other enterprise. The term "Proceeding" shall mean any threatened,
pending or completed action or suit (including, without limitation, an action,
suit or proceeding by or in the right of this Corporation), whether civil,
criminal, administrative or investigative.
Section 2. Indemnification. Each Indemnitee shall be indemnified and held
harmless by this Corporation for all actions taken by him or her, and for all
omissions (regardless of the date of any such action or omission), to the
fullest extent permitted by Nevada law, against all expense, liability and loss
(including, without limitation, attorney fees, judgments, fines, taxes,
penalties, and amounts paid or to be paid in settlement) reasonably incurred or
suffered by the Indemnitee in connection with any Proceeding. Indemnification
pursuant to this Section shall continue as to an Indemnitee who has ceased to be
a Director or Officer and shall inure to the benefit of his or her heirs,
executors and administrators. This Corporation may, by action of its Board of
Directors, and to the extent provided in such action, indemnify employees and
other persons as though they were Indemnitees. The rights to indemnification as
provided in this Article shall be non-exclusive of any other rights that any
person may have or hereafter acquire under an statute, provision of this
Corporation's Articles of Incorporation or Bylaws, agreement, vote of
stockholders or Directors, or otherwise.
Section 3. Financial Arrangements. This Corporation may purchase and
maintain insurance or make other financial arrangements on behalf of any person
who is or was a Director, Officer, employee or agent of this
Corporation, or is or was serving at the request of this Corporation in such
capacity for another corporation, partnership, joint venture, trust or other
enterprise for any liability asserted against him or her and liability and
expenses incurred by him or her in such capacity, whether or not this
Corporation has the authority to indemnify him or her against such liability and
expenses.
The other financial arrangements which may be made by this Corporation may
include, but are not limited to, (a) creating a trust fund; (b) establishing a
program of self-insurance; (c) securing its obligation of indemnification by
granting a security interest or other lien on any of this Corporation's assets,
and (d) establishing a letter of credit, guarantee or surety. No financial
arrangement made pursuant to this section may provide protection for a person
adjudged by a court of competent jurisdiction, after exhaustion of all appeals
therefrom, to be liable for intentional misconduct, fraud, or a knowing
violation of law, except with respect to advancing expenses or indemnification
ordered by a court. Any insurance or other financial arrangement made on behalf
of a person pursuant to this section may be provided by this Corporation or any
other person approved by the Board of Directors, even if all or part of the
other person's stock or other securities is owned by this Corporation. In the
absence of fraud:
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(a) the decision of the Board of Directors as to the propriety of the
terms and conditions of any insurance or other financial arrangement made
pursuant to this section, and the choice of the person to provide the insurance
or other financial arrangement is conclusive; and
(b) the insurance or other financial arrangement is not void or voidable;
does not subject any Director approving it to personal liability for his action;
and even if a Director approving the insurance or other financial arrangement is
a beneficiary of the insurance or other financial arrangement.
Section 4. Contract of Indemnification. The provisions of this Article
relating to indemnification shall constitute a contract between this Corporation
and each of its Directors and Officers, which may be modified as to any Director
or Officer only with that person's consent or as specifically provided in this
section. Notwithstanding any other provision of the Bylaws relating to their
amendment generally, any repeal or amendment of this Article which is adverse to
any Director or Officer shall apply to such Director or Officer only on a
prospective basis and shall not limit the rights of an Indemnitee to
indemnification with respect to any action or failure to act occurring prior to
the time of such repeal or amendment. Notwithstanding any other provision of
these Bylaws, no repeal or amendment of these Bylaws shall affect any or all of
this Article so as to limit or reduce the indemnification in any manner unless
adopted by (a) the unanimous vote of the Directors of this Corporation then
serving, or (b) the stockholders as set forth in Article XII hereof; provided
that no such amendment shall have retroactive effect inconsistent with the
preceding sentence.
Section 5. Nevada Law. References in this Article to Nevada law or to any
provision thereof shall be to such law as it existed on the date these Bylaws
were adopted or as such law thereafter may be changed; provided that (a) in the
case of any change which expands the liability of an Indemnitee or limits the
indemnification rights or the rights to advancement of expenses which this
Corporation may provide, the rights to limited liability, to indemnification and
to the advancement of expenses provided in this Corporation's Articles of
Incorporation, these Bylaws, or both shall continue as theretofore to the extent
permitted by law; and (b) if such change permits this Corporation, without the
requirement of any further action by stockholders or Directors, to limit further
the liability of Indemnitees or to provide broader indemnification rights or
rights to the advancement of expenses than this Corporation was permitted to
provide prior to such change, liability thereupon shall be so limited and the
rights to indemnification and advancement of expenses shall be so broadened to
the extent permitted by law."
(c) Nevada Revised Statutes.
"NRS 78.7502 Discretionary and mandatory indemnification of officers,
directors, employees and agents:
General provisions.
(1) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
except an action by or in the right of the corporation, by reason of the fact
that he 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, including attorneys' fees, judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with the action, suit or proceeding if he acted in good faith and in
a manner which he 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 conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent, does not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and that, with respect to any criminal action or
proceeding, he had reasonable cause to believe that his conduct was unlawful.
(2) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he 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, including amounts paid in settlement and attorneys'
fees actually and reasonably incurred by him in connection with the defense or
settlement of the action or suit if he acted in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interests of the
corporation.
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Indemnification may not be made for any claim, issue or matter as to which such
a person has been adjudged by a court of competent jurisdiction, after
exhaustion of all appeals therefrom, to be liable to the corporation or for
amounts paid in settlement to the corporation, unless and only to the extent
that the court in which the action or suit was brought or other court of
competent jurisdiction determines upon application that in view of all the
circumstances of the case, the person is fairly and reasonably entitled to
indemnity for such expenses as the court deems 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
action, suit or proceeding referred to in subsections 1 and 2, or in defense of
any claim, issue or matter therein, the corporation shall indemnify him against
expenses, including attorneys' fees, actually and reasonably incurred by him in
connection with the defense.
NRS 78.751 Authorization required for discretionary indemnification;
advancement of expenses; limitation on indemnification and advancement of
expenses.
(1) Any discretionary indemnification under NRS 78.7502 unless ordered by
a court or advanced pursuant to subsection 2, may 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. The determination must be made:
(i) By the stockholders;
(ii) By the board of directors by majority vote of a quorum consisting of
directors who were not parties to the action, suit or proceeding;
(iii) If a majority vote of a quorum consisting of directors who were not
parties to the action, suit or proceeding so orders, by independent legal
counsel in a written opinion; or
(iv) If a quorum consisting of directors who were not parties to the
action, suit or proceeding cannot be obtained, by independent legal counsel in a
written opinion.
(2) The articles of incorporation, the bylaws or an agreement made by the
corporation may provide that the expenses of officers and directors incurred in
defending a civil or criminal action, suit or proceeding must be paid by the
corporation as they are incurred and in advance of the final disposition of the
action, suit or proceeding, upon receipt of an undertaking by or on behalf of
the director or officer to repay the amount if it is ultimately determined by a
court of competent jurisdiction that he is not entitled to be indemnified by the
corporation. The provisions of this subsection do not affect any rights to
advancement of expenses to which corporate personnel other than directors or
officers may be entitled under any contract or otherwise by law.
(3) The indemnification and advancement of expenses authorized in NRS
78.7502 or ordered by a court pursuant to this section:
(i) Does not exclude any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under the articles of
incorporation or any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, for either an action in his official capacity or an
action in another capacity while holding his office, except that
indemnification, unless ordered by a court pursuant to or for the advancement of
expenses made pursuant to subsection 2, may not be made to or on behalf of any
director or officer if a final adjudication establishes that his acts or
omissions involved intentional misconduct, fraud or a knowing violation of the
law and was material to the cause of action.
(ii) Continues for a person who has ceased to be a director, officer,
employee or agent and inures to the benefit of the heirs, executors and
administrators of such a person.
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NRS 78.752 Insurance and other financial arrangements against liability of
directors, officers, employees and agents.
(1) A corporation may purchase and maintain insurance or make other
financial arrangements 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 for any
liability asserted against him and liability and expenses incurred by him in his
capacity as a director, officer, employee or agent, or arising out of his status
as such, whether or not the corporation has the authority to indemnify him
against such liability and expenses.
(2) The other financial arrangements made by the corporation pursuant to
subsection 1 may include the following:
(i) The creation of a trust fund.
(ii) The establishment of a program of self-insurance.
(iii) The securing of its obligation of indemnification by granting a
security interest or other lien on any assets of the corporation.
(iv) The establishment of a letter of credit, guaranty or surety.
No financial arrangement made pursuant to this subsection may provide protection
for a person adjudged by a court of competent jurisdiction, after exhaustion of
all appeals therefrom, to be liable for intentional misconduct, fraud or a
knowing violation of law, except with respect to the advancement of expenses or
indemnification ordered by a court.
(3) Any insurance or other financial arrangement made on behalf of a
person pursuant to this section may be provided by the corporation or any other
person approved by the board of directors, even if all or part of the other
person's stock or other securities is owned by the corporation.
(4) In the absence of fraud:
(i) The decision of the board of directors as to the propriety of the
terms and conditions of any insurance or other financial arrangement made
pursuant to this section and the choice of the person to provide the insurance
or other financial arrangement is conclusive; and
(ii) The insurance or other financial arrangement:
(A) Is not void or voidable; and
(B) Does not subject any director approving it to personal liability
for his action, even if a director approving the insurance or other financial
arrangement is a beneficiary of the insurance or other financial arrangement.
(5) A corporation or its subsidiary which provides self-insurance for
itself or for another affiliated corporation pursuant to this section is not
subject to the provisions of Title 57 of NRS."
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.
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ITEM 9. UNDERTAKINGS
The undersigned Company 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;
(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.
(4) 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 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.
(5) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers, and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company 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 that 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 of the Company in the successful
defense of that 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 of 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 City of Newport Beach, State of California, on November 28, 2003.
INTERNET BUSINESS INTERNATIONAL, INC.
/s/ Albert R. Reda
Albert R. Reda, President
SPECIAL POWER OF ATTORNEY
The undersigned constitute and appoint Albert R. Reda 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
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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/ Albert R. Reda November 28, 2003
Albert R. Reda Chief Executive Officer/ Secretary/
Treasurer (principal financial and
accounting officer)/Director
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EXHIBIT INDEX
Exhibit No. Description
4 2003 EMPLOYEES AND CONSULTANTS PLAN III dated November 28, 2003
(filed herewith).
5 Opinion Re: Legality (filed herewith).
23.1 Consent of Accountants (filed herewith).
23.2 Consent of Counsel (included in Exhibit 5).
24 Special Power of Attorney (see signature page).
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