SEC Registration No. 333-111080
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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theglobe.com, inc.
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(Exact name of registrant as specified in its charter)
DELAWARE 14-1781422
(State or other jurisdiction of (I.R.S. Employer
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 AMENDED & RESTATED NON-QUALIFIED 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
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Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered(1) Per Share Offering Price Registration Fee
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Common Stock, par value $.001
per share 500,000 shares $0.20(2) $ 100,000 $ 8.09
Common Stock, par value $.001
per share 1,000,000 shares $1.81(3) $1,810,000 $146.43
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Total: 1,500,000 shares $1,910,000 $154.52(4)
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(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.
(4) Paid as part of the original filing of the Form S-8, file no. 333-111080.
EXPLANATORY NOTE TO POST EFFECTIVE AMENDMENT NO. 1:
This Post Effective Amendment No. 1 relates to the amendment and
restatement of the plan formerly known as theglobe.com, inc. 2003 Sales
Representative's Stock Option Plan. Such amendment and restatement
includes the renaming of the plan as theglobe.com, inc. 2003 Amended &
Restated Non-Qualified Stock Option Plan.
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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 Amended & Restated Non-Qualified 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.
We also incorporate by reference additional documents that we may file
with the SEC under Section 13 (a), 13 (c), 14 or 15(d) of the Exchange Act after
the date of this Registration Statement and prior to the completion of the
offering of the shares of common stock offered hereby. These documents include
periodic reports, such as Annual Reports on Form 10-KSB, Quarterly Reports on
Form 10-QSB, Current Reports on Form 8-K and proxy statements.
Information furnished under Items 9 and 12 of any of our Current Reports
on Form 8-K is not incorporated by reference in this Registration Statement or
the registration statement of which this prospectus is a part.
When reading this Registration Statement, you should consider that any
statement contained in this prospectus may be modified or superseded by any
other statement made in this Registration Statement to the extent that the
second statement modifies or supersedes the first statement. This would also
apply to any statement that is incorporated by reference, or deemed to be
incorporated by reference, in any document filed by theglobe.com, inc. after the
date of this Registration Statement, including any supplement to this
Registration Statement. Any statement which is modified or superseded as
described in the previous sentence is not a part of this Registration Statement,
except as such statement is modified or superseded.
Item 4. Description of Securities
Not applicable.
Item 5.
Not applicable.
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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.
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.
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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
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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, previously filed as
Exhibit A to the Company's Definitive Proxy Statement dated June
16, 2003 and filed with the SEC on June 24, 2003.
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* thegloble.com, inc. 2003 Amended & Restated Non-Qualified 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)
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* filed herewith
** previously filed
Item 9. Undertakings
The Company hereby undertakes:
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(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.
(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.
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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 January 21,
2004.
theglobe.com, inc.
By: /s/ Robin S. Lebowitz
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Robin Segaul Lebowitz,
Chief Financial Officer, Secretary
and Treasurer (Principal Financial
and Accounting Officer)
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Index to Exhibits
EXHIBIT NO. DESCRIPTION OF EXHIBITS
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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, previously filed as
Exhibit A to the Company's Definitive Proxy Statement dated June
16, 2003 and filed with the SEC on June 24, 2003.
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* theglobe.com, inc. 2003 Amended & Restated Non-Qualified 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)
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* filed herewith
** previously filed
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