U.S. 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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IMERGENT, INC.
(Exact name of registrant as specified in its charter)
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Delaware 87-0591719
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(State of incorporation) (I.R.S. Employer
Identification No.)
754 EAST TECHNOLOGY AVENUE
OREM, Utah 84097
(801) 227-0004
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(Address and telephone number of registrant's principal executive offices
and principal place of business)
2003 EQUITY INCENTIVE PLAN
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(Full Title of the Plan)
DONALD L. DANKS
754 EAST TECHNOLOGY AVENUE
OREM, Utah 84097
(801) 227-0004
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(Name, Address and telephone number of agent for service)
Copies to:
_______________________
__________________________
_____________________________
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Calculation of Registration Fee
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Title of Each Class Amount Proposed Maximum Proposed Maximum Amount of
Of Securities To Be Offering Price Aggregate Registration
To Be Registered Registered Per Share Offering Price Fee
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Common Stock, Par Value $0.001 1,000,000 $10.32 $10,320,000 $1,307.54
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The offering price per share for the selling security holders was estimated
solely for the purpose of calculating the registration fee pursuant to Rule 457
of Regulation C. Pursuant to Rules 457(c) and (h) of the Securities Act of 1933,
as amended, the registration fee has been calculated based upon a price of
$10.32 per share, the closing price of the common stock on November 5, 2004 as
reported on the American Stock Exchange.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The documents containing the information specified in Part I of Form
S-8 (plan information and registrant information) will be sent or given to
employees as specified by Securities and Exchange Commission Rule 428(b)(1).
Such documents need not be filed with the Securities and Exchange Commission
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424. These documents and the documents incorporated
by reference in this Registration Statement pursuant to Item 3 of Part II
hereof, taken together, constitute a prospectus that meets the requirements of
Section 10(a) of the Securities Act of 1933.
Item 2. Registrant Information and Employee Plan Annual Information.
See response to Item 1. above.
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 ("SEC") are incorporated herein by reference:
(a) Registrant's latest Annual Report on Form 10-K for the year
ended June 30, 2004 filed pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934 ("Exchange Act");
(b) Registrant's Current Report on Form 8-K filed with the SEC on
September 8, 2004;
(c) Registrant's Current Report on Form 8-K filed with the SEC on
October 26, 2004;
(d) Registrant's latest Quarterly Report on Form 10-Q for the
three months ended September 30, 2004 filed pursuant to
Section 13(a) or 15(d) of the Exchange Act;
(d) All documents subsequently filed by the registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior
to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which
deregistered 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; and
(e) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 8-A, filed
pursuant to Section 12 of the Exchange Act, including any
amendment or report filed for the purpose of updating such
description.
Any statement contained herein or in a document, all or a portion of
which is incorporated or deemed to be 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 herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or amended, to constitute
a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 102(b) of the Delaware General Corporation Law authorizes a
corporation to provide in its Certificate of Incorporation that a director of
the corporation shall not be personally liable to a corporation or its
stockholders for monetary damages for breach or alleged breach of the director's
"duty of care." While this statute does not change directors' duty of care, it
enables corporations to limit available relief to equitable remedies such as
injunction or rescission. The statute has no effect on a director's duty of
loyalty or liability for acts or omissions not in good faith or involving
intentional misconduct or knowing violations of law, illegal payment of
dividends or stock redemptions or repurchases, or for any transaction from which
the director derives an improper personal benefit. As permitted by the statute,
the Registrant has adopted provisions in its Certificate of Incorporation which
eliminate to the fullest extent permissible under Delaware law the personal
liability of its directors to the Registrant and its stockholders for monetary
damages for breach or alleged breach of their duty of care.
Section 145 of the Delaware General Corporation Law provides for the
indemnification of officers, directors, employees and agents of a corporation.
The Registrant's Certificate of Incorporation provides for indemnification of
its directors, officers and employees to the fullest extent permitted by
Delaware law. The Registrant is also authorized to enter into indemnification
agreements with its directors and officers and to purchase insurance on behalf
of any person whom it is required or permitted to indemnify. The Registrant has
entered into agreements with its directors that require it to indemnify such
persons to the fullest extent permitted by its Certificate of Incorporation and
Delaware law. The agreements also set forth certain procedures that will apply
in the event of a claim for indemnification thereunder.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
Item 9. Undertakings.
A. Rule 415 Undertakings
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:
(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;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8, and 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 the Exchange Act that are incorporated by
reference 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.
B. Subsequent Exchange Act Filing Undertakings
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 any
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.
C. Indemnification Undertakings
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, 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 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.
SIGNATURES
In accordance with the requirements of the Securities Act of 1933, as
amended, we certify that we have reasonable grounds to believe that we meet all
of the requirements of filing on Form S-8 and have authorized this registration
statement to be signed on our behalf by the undersigned, in the city of Orem,
Utah, on November 5, 2004.
IMERGENT, INC.
A Delaware Corporation
By: /s/ Donald L. Danks
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Donald L. Danks
Its: Chief Executive Officer and
Chairman of the Board of Directors
In accordance with the requirements of the Securities Act of 1933, this
registration statement was signed by the following persons in the capacities and
on the dates stated:
/s/ Donald L. Danks November 5, 2004
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Donald L. Danks
Chief Executive Officers and
Chairman of the Board of Directors
/s/ Brandon Lewis November 5, 2004
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Brandon Lewis
Director and President
/s/ Peter Fredericks November 5, 2004
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Peter Fredericks
Director
/s/ Thomas Scheiner November 5, 2004
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Thomas Scheiner
Director
/s/ Gary Gladstein November 5, 2004
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Gary Gladstein
Director
POWER OF ATTORNEY
The persons whose signatures appears below constitute and appoint and hereby
authorize Donald L. Danks with the full power of substitution, as
attorney-in-fact, to sign in such person's behalf, individually and in his
capacity as a director, and to file any amendments, including post-effective
amendments to this Registration Statement.
In accordance with the requirements of the Securities Act of 1933, this
Registration Statement was signed by the following persons in the capacity and
on the date stated.
/s/ Brandon Lewis November 5, 2004
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Brandon Lewis
Director and President
/s/ Peter Fredericks November 5, 2004
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Peter Fredericks
Director
/s/ Thomas Scheiner November 5, 2004
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Thomas Scheiner
Director
/s/ Gary Gladstein November 5, 2004
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Gary Gladstein
Director
EXHIBIT INDEX
Exhibit
Number Description
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4.1 Imergent, Inc. 2003 Equity Incentive Plan (1)
5.1 Opinion of Jeffrey G. Korn, esquire
23.1 See Exhibit 5.1
23.2 Consent of Grant Thornton LLP
24.1 Power of Attorney (see signature page)
(1) Incorporated by reference from the annual report on Form 10-K filed by the
Registrant on September 10, 2004.