-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NC/Qu95mI9e9uZKib4h1Z4mj7Pg6hutOkm4N2H/7q39OD0Ut+k0AqrFnXnrzQ41O xjIqCJc4tyZEByAHVx3I0Q== 0000929624-00-000353.txt : 20000316 0000929624-00-000353.hdr.sgml : 20000316 ACCESSION NUMBER: 0000929624-00-000353 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20000314 EFFECTIVENESS DATE: 20000314 FILER: COMPANY DATA: COMPANY CONFORMED NAME: INTERACTIVE NETWORK INC /CA CENTRAL INDEX KEY: 0000879482 STANDARD INDUSTRIAL CLASSIFICATION: CABLE & OTHER PAY TELEVISION SERVICES [4841] IRS NUMBER: 943025019 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-32476 FILM NUMBER: 569457 BUSINESS ADDRESS: STREET 1: 1161 OLD COUNTRY RD CITY: SAN JOSE STATE: CA ZIP: 94002 BUSINESS PHONE: 6505088793 MAIL ADDRESS: STREET 1: 1161 OLD COUNTRY RD CITY: SAN JOSE STATE: CA ZIP: 94002 S-8 1 FORM S-8 - INTERACTIVE NETWORK AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 14, 2000 REGISTRATION NO. 333-_____ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------------------- INTERACTIVE NETWORK, INC. (Exact name of Registrant as Specified in Its Charter) ------------------------------------------------------ California 94-3025019 (State or Other Jurisdiction (I.R.S. Employer of Incorporation or Organization) Identification No.) 1161 OLD COUNTY ROAD BELMONT, CALIFORNIA 94002 (Address of Principal Executive Offices) INTERACTIVE NETWORK, INC. 1999 STOCK OPTION PLAN (Full Title of the Plan) ------------------------------------------------ BRUCE W. BAUER PRESIDENT INTERACTIVE NETWORK, INC. 1161 OLD COUNTY ROAD BELMONT, CALIFORNIA 94002 (Name and Address of Agent for Service) (650) 508-8793 (Telephone Number, Including Area Code, of Agent For Service) Copy to: ROBERT S. TOWNSEND, ESQ. MORRISON & FOERSTER LLP 425 MARKET STREET SAN FRANCISCO, CALIFORNIA 94105 (415) 268-7000 CALCULATION OF REGISTRATION FEE
Proposed Proposed Amount Maximum Maximum Amount of Title of Securities to be Offering Price Aggregate Offering Registration to be Registered Registered Per Share(2) Price Fee - ------------------- ---------- ----------------- ------------------ ------------ Common Stock, no 3,650,000(1) $ 5.28125 $ 19,276,562 $ 5,089 par value per share
(1) Represents shares available for grant under the 1999 Stock Incentive Plan. (2) Estimated in accordance with Rule 457(h) under the Securities Act of 1933, as amended, solely for the purpose of calculating the registration fee. Computation based upon the average of the high and low prices of the Registrant's Common Stock as reported on the OTC Bulletin Board on March 7, 2000. PART I INFORMATION REQUIRED IN THE SECTION 10 (A) PROSPECTUS The documents containing the information concerning the Interactive Network, Inc. 1999 Stock Option Plan specified in Part I of Form S-8 (plan information and registrant information and employee plan annual information) will be sent or given to employees as specified by Securities and Exchange Commission (the "Commission") Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act"). Such documents need not be filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Form S-8 (Part II hereof), taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents filed by Interactive Network, Inc. (the "Registrant") with the Commission are incorporated by reference herein: (a) The Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 1998, filed on March 30, 1999, pursuant to Section 13(a) of the Securities Exchange Act of 1934 (the "Exchange Act"). (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 audited financial statements covered in (a) above. (c) The description of the Registrant's Common Stock which is contained in its Registration Statement (No. 33-42951) on Form S-1 filed with the Commission on September 24, 1991. All documents filed by the Registrant with the Commission pursuant to Section 13(a), 13(c), 14 or 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 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 such documents. Any statement contained in a document 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 subsequently filed document which also 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 superseded, to constitute a part of this Registration Statement. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Registrant's Bylaws provide that the Company will indemnify its agents to the fullest extent permitted by California law. The Registrant is also empowered under its Bylaws 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 indemnification agreements with each of its directors and executive officers. In addition, the Registrant's Amended and Restated Articles of Incorporation provide that the liability of the Registrant's directors shall be eliminated to the fullest extent permissible under California law. This provision in the Amended and Restated Articles of Incorporation does not eliminate a director's duty of care, and in appropriate circumstances equitable remedies such as an injunction or other forms of non-monetary relief will remain available under California law. Each director will continue to be subject to liability for breach of the director's duty of loyalty to the Registrant, for acts or omission not in good faith or involving II-1 intentional misconduct or knowing violations of law, for acts or omissions that the director believes to be contrary to the best interests of the Registrant or its shareholders, for any transaction from which the director derived an improper personal benefit, for improper transactions between the director and the Registrant and for improper distributions to shareholders and loans to directors and officers. This provision also does not affect a director's responsibilities under any laws, such as the federal securities laws or state or federal environmental laws. The Registrant has entered into agreements with its directors and executive officers that require the Registrant to indemnify such persons against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred (including expenses of derivative action) in connection with any proceeding, whether actual or threatened, to which any such person may be made a party by reason of the fact that such person is or was a director or officer of the Registrant or any of its affiliated enterprises, provided such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Registrant and, with respect to any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful. The indemnification agreement also sets 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. 4.1 Amended and Restated Articles of Incorporation of the Registrant (incorporated by reference to Exhibit 4.1 to the Registrant's Form S-8 Registration Statement, as filed with the Commission on November 10, 1992). 4.2 Certificate of Determination of the Registrant, filed with the California Secretary of State on September 20, 1994 (incorporated by reference to Exhibit 3.3 to the Registrant's Form 8-K Report, as filed with the Commission on October 3, 1994). 4.3 Certificate of Amendment of Amended and Restated Articles of Incorporation of Registrant, dated May 22, 1995 (incorporated by reference to Exhibit 3.3 of the Registrant's Form 10-K Annual Report, as filed with the Commission on March 30, 1999). 4.4 Bylaws of the Registrant, as amended (incorporated by reference to Exhibit 4.2 to the Registrant's Form S-8 Registration Statement, as filed with the Commission on November 10, 1992). 4.5 Amendment to By-laws of the Registrant, dated February 26, 1999 (incorporated by reference to Exhibit 3.4(b) of the Registrant's Form 10-K Annual Report, as filed with the Commission on March 30, 1999). 5.1 Opinion of Morrison & Foerster LLP. 23.1 Consent of KPMG LLP, Independent Public Accountants. 23.2 Consent of Morrison & Foerster LLP (contained in Exhibit 5.1). 24.1 Power of Attorney (see signature page of this Registration Statement). ITEM 9. UNDERTAKINGS. (a) 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; (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. Notwithstanding II-2 the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective 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 the Registration Statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(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 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 upon the termination of the Interactive Network, Inc. 1999 Stock Incentive Plan. (b) The undersigned Registrant hereby 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 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to 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 indemnity provisions summarized in Item 6 above or otherwise, the Registrant 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 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. II-3 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 the City of Belmont, State of California, on February 22, 2000. INTERACTIVE NETWORK, INC. By: /s/ Bruce W. Bauer ----------------------- Bruce W. Bauer President POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Bruce W. Bauer, with full power to act alone, as his or her true and lawful attorney-in-fact, with the power of substitution, for and in such person's name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto each said attorney-in-fact full power and authority to do and perform each and every act and thing requisite and necessary to be done as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that each said 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 dates indicated: SIGNATURE TITLE DATE --------- ----- ---- /s/ Bruce W. Bauer Chairman of the February 18, 2000 - ----------------------------- Bruce W. Bauer Board of Directors, Chief Executive Officer and President (Principal Executive Officer) /s/ John J. Bohrer Director, Secretary February 18, 2000 - ----------------------------- John J. Bohrer and Treasurer (Principal Financial and Accounting Officer) /s/ William H. Green Director February 21, 2000 - ----------------------------- William H. Green /s/ William L. Groeneveld Director February 22, 2000 - ----------------------------- William L. Groeneveld II-4 EXHIBIT INDEX EXHIBIT NUMBER DESCRIPTION - ------ ----------- 4.1 Amended and Restated Articles of Incorporation of the Registrant (incorporated by reference to Exhibit 4.1 to the Registrant's Form S-8 Registration Statement, as filed with the Commission on November 10, 1992). 4.2 Certificate of Determination of the Registrant, filed with the California Secretary of State on September 20, 1994 (incorporated by reference to Exhibit 3.3 to the Registrant's Form 8-K Report, as filed with the Commission on October 3, 1994). 4.3 Certificate of Amendment of Amended and Restated Articles of Incorporation of Registrant, dated May 22, 1995 (incorporated by reference to Exhibit 3.3 of the Registrant's Form 10-K Annual Report, as filed with the Commission on March 30, 1999). 4.4 Bylaws of the Registrant, as amended (incorporated by reference to Exhibit 4.2 to the Registrant's Form S-8 Registration Statement, as filed with the Commission on November 10, 1992). 4.5 Amendment to By-laws of the Registrant, dated February 26, 1999 (incorporated by reference to Exhibit 3.4(b) of the Registrant's Form 10-K Annual Report, as filed with the Commission on March 30, 1999). 5.1 Opinion of Morrison & Foerster LLP. 23.1 Consent of KPMG LLP, Independent Public Accountants. 23.2 Consent of Morrison & Foerster LLP (contained in Exhibit 5.1). 24.1 Power of Attorney (see signature page of this Registration Statement). II-5 EX-5.1 2 OPINION OF MORRISON & FOERSTER Exhibit 5.1 MORRISON & FOERSTER LLP San Francisco, California March 9, 2000 Interactive Network, Inc. 1161 Old County Road Belmont, California 94002 Gentlemen: At your request, we have examined the Registration Statement on Form S-8 executed by you on February 18, 2000, and to be filed with the Securities and Exchange Commission (the "SEC") in connection with the registration under the Securities Act of 1933, as amended, of an aggregate of 3,650,000 shares of your common stock, no par value (the "Common Stock"), which will be issuable under your 1999 Stock Option Plan (the "Plan"). As your counsel in connection with the Registration Statement, we have examined the proceedings taken by you in connection with the adoption of the Plan and authorization of the issuance of 3,650,000 shares of Common Stock under the Plan (the "Plan Shares"), and such documents as we have deemed necessary to render this opinion. Based upon the foregoing, it is our opinion that the Plan Shares, when issued and outstanding pursuant to the terms of the Plan, will be validly issued, fully paid and non-assessable shares of Common Stock. We consent to the use of this opinion as an exhibit to the Registration Statement. Very truly yours, /S/ MORRISON & FOERSTER LLP EX-23.1 3 CONSENT OF KPMG LLP Exhibit 23.1 Consent of KPMG LLP CONSENT OF INDEPENDENT AUDITORS The Board of Directors Interactive Network Inc. We consent to the Incorporation by reference in the registration statements on Form S-8, dated March 14, 2000 of Interactive Network, Inc. of our report dated March 5, 1999, with respect to the consolidated balance sheets of Interactive Networks, Inc. and subsidiary as of December 31, 1997 and 1998, and the related consolidated statements of operations, shareholders' deficit, and cash flows for each of the years in the three-year period ended December 31, 1998 which report appears in the Form 10-k of Interactive Network, Inc. dated March 30, 1999. /s/ KPMG LLP Mountain View, California. March 10, 2000 -----END PRIVACY-ENHANCED MESSAGE-----