As filed with the Securities and Exchange Commission on September 15, 2004
Registration No. 333-_____
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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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VFINANCE, INC.
(Exact name of registrant as specified in its charter)
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Delaware 58-1974423
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3010 North Military Trail, Suite 300
Boca Raton, Florida 33431
(561) 981-1000
(Address, including zip code, and
telephone number, including area code, of
registrant's principal executive offices)
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Individual Employee and Consultant Stock Options
(Full Title of Plan)
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Leonard J. Sokolow
President and Chief Executive Officer
vFinance, Inc
3010 North Military Trail, Suite 300
Boca Raton, Florida 33431
(561) 981-1000
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
with a copy to:
Leslie J. Croland, Esq.
Edwards & Angell, LLP
600 Corporate Drive, Suite 514
Fort Lauderdale, Florida 33334-3607
(954) 491-8050 (tel.)
(954) 351-7175 (fax)
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CALCULATION OF REGISTRATION FEE
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Title of Each Class Amount to be Proposed maximum Proposed maximum Amount of
of Securities to be Registered registered offering price per aggregate offering registration
share (1) price (1) fee
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Common Stock, 8,848,212(2) $0.19 $1,681,160 $213.00
$.01 par value per share.....
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(1) These figures are estimates made solely for the purpose of calculating the
registration fee pursuant to Rule 457 under the Securities Act of 1933, as
amended. The registration fee has been calculated in accordance with Rule
457(h)(1) based upon the average of the high and low prices of the
Registrant's Common Stock reported on the OTC Bulletin Board on September
10, 2004.
(2) In addition, pursuant to Rule 416 under the Securities Act of 1933, as
amended, this Registration Statement also covers an indeterminable number
of shares that may be offered and issued pursuant to stock splits, stock
dividends or similar transactions.
This Registration Statement shall become effective upon filing with the
Commission in accordance with Section 8(a) of the Securities Act, and Rules 456
and 462 promulgated thereunder.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
(not required to be filed as part of this Registration Statement)
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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There are hereby incorporated by reference in this Registration Statement the
following documents and information heretofore filed by the Registrant with the
Commission:
(1) The Registrant's Annual Report on Form 10-KSB for the fiscal year
ended December 31, 2003;
(2) The Registrant's Quarterly Reports on Form 10-QSB for the fiscal
quarters ended March 31, 2004 and June 30, 2004, respectively;
and
(3) The description of the Registrant's Common Stock, par value $0.01
per share, contained in the Registrant's Registration Statement
on Form SB-2/A filed with the Commission on July 27, 2000.
In addition to the foregoing, 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, as amended, prior to the filing of a post-effective amendment to this
Registration Statement indicating that all of the securities offered hereunder
have been sold or deregistering all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
part hereof from the date of filing of such documents (excluding information
furnished in filings made under Items 2.02 or 7.01 of Form 8-K). Any statement
contained in a document incorporated or deemed to be incorporated by reference
in this Registration Statement shall be deemed to be modified or superseded for
purposes of this Registration Statement to the extent that a statement contained
herein or in any subsequently filed document that is or is deemed to be also
incorporated by reference herein modified or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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Section 145 of the Delaware General Corporation Law provides that a corporation
may indemnify directors and officers as well as other employees and individuals
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
any threatened, pending or completed actions, suits or proceedings in which such
person is made a party by reason of such person being or having been a director,
officer, employee or agent to the corporation. The Delaware General Corporation
Law provides that Section 145 is not exclusive of other rights to which those
seeking indemnification may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise. Article XII of the Bylaws
of vFinance, Inc. (the "Company") provides for indemnification by the Company of
its directors, officers and employees.
Section 102(b)(7) of the Delaware General Corporation Law permits a corporation
to provide in its certificate of incorporation that a director of the
corporation 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 (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) for
unlawful payments of dividends or unlawful stock repurchases, redemptions or
other distributions, or (iv) for any transaction from which the director derived
an improper personal benefit. The Company's Certificate of Incorporation
provides for such limitation of liability.
The Company has obtained directors and officers insurance providing
indemnification for certain of the Company's directors, officers and employees
for certain liabilities.
Item 7. Exemption from Registration Claimed.
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Not applicable.
Item 8. Exhibits.
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A list of the exhibits included as part of this Registration Statement is set
forth in the Exhibit Index which immediately precedes such exhibits and is
hereby incorporated by reference herein.
Item 9. Undertakings.
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(a) The 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:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933, as amended (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; and
(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) shall not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this 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 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) The Registrant hereby further 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 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.
(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 Registrant's bylaws, 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
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 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 of 1933, vFinance, Inc.
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 Boca Raton, Florida, on this 14th day of September, 2004.
VFINANCE, INC.
By: /s/ Leonard J. Sokolow
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Leonard J. Sokolow
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Leonard J. Sokolow and Mark Kacer, and each of
them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead in any
and all capacities, to sign any or all amendments to this Registration Statement
on Form S-8 (including post-effective amendments), and to file the same, with
all exhibits thereto, and other documents in connection therewith with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents 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 that said attorneys-in-fact and agents, or their substitute or
substitutes, 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 dates indicated.
Signature Title Date
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/s/ Leonard J. Sokolow Director, President and Chief September 14, 2004
--------------------------- Executive Officer
Leonard J. Sokolow (Principal Executive Officer)
/s/ Mark Kacer Chief Financial Officer September 14, 2004
--------------------------- (Principal Financial and Accounting
Mark Kacer Officer)
/s/ Timothy E. Mahoney Director September 14, 2004
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Timothy E. Mahoney
EXHIBIT INDEX
4.1 Certificate of Incorporation as filed with the Delaware Secretary of
State on February 12, 1992 (incorporated by reference to the Company's
Registration Statement on Form S-18 filed with the SEC on July 24, 1992).
4.2 Certificate of Renewal and Revival of Certificate of Incorporation as
filed with the Delaware Secretary of State on March 15, 1996
(incorporated by reference to Exhibit 3.2 to the Company's Annual Report
on Form 10-KSB filed with the SEC on March 30, 2000).
4.3 Certificate of Amendment to the Certificate of Incorporation as filed
with the Delaware Secretary of State on April 28, 1999 (incorporated by
reference to Exhibit 3.3 to the Company's Annual Report on Form 10-KSB
filed with the SEC on March 30, 2000).
4.4 Certificate of Amendment to Certificate of Incorporation as filed with
the Delaware Secretary of State on March 13, 2000 (incorporated by
reference to Exhibit 3.4 to the Company's Annual Report on Form 10-KSB
filed with the SEC on March 30, 2000).
4.5 Certificate of Amendment to Certificate of Incorporation as filed with
the Delaware Secretary of State on November 28, 2001 (incorporated by
reference to Exhibit 3.5 to the Company's Annual Report on Form 10-KSB
filed with the SEC on April 16, 2002).
4.6 Bylaws of the Company (incorporated by reference to the Company's
Registration Statement on Form S-18 filed with the SEC on July 24, 1992).
4.7 Unanimous Written Consents of the Company's Board of Directors, each
dated January 24, 1994, amending the Bylaws (incorporated by reference to
Exhibits 3.6 and 3.7 to the Company's Annual Report on Form 10-KSB filed
with the SEC on March 30, 2000).
*5.1 Opinion of Edwards & Angell, LLP regarding legality of securities being
registered. *
23.1 Consent of Sherb & Co., LLP.
23.2 Consent of Edwards & Angell, LLP (included in Exhibit 5.1 to this
Registration Statement).
24.1 Power of Attorney (included on signature pages of this Registration
Statement).
*Filed herewith.