As filed with the Securities and Exchange Commission on May 22, 2003
Registration No. 333-______________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
INTERNET PICTURES CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 52-2213841
(State of Incorporation) (I.R.S. Employer Identification No.)
3160 Crow Canyon Road
San Ramon, California 94583
(Address of principal executive offices)
AMENDED AND RESTATED 2001 EQUITY INCENTIVE PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
AMENDED AND RESTATED 1998 EMPLOYEE, DIRECTOR AND CONSULTANT STOCK PLAN
(Full Title of the Plans)
DONALD W. STRICKLAND
Chief Executive Officer
Internet Pictures Corporation
3160 Crow Canyon Road
San Ramon, California 94583
(925) 242-4002
(Name, address and telephone number of agent for service)
(with copies to:)
Matthew S. Heiter
Roger D. Bailey
Baker, Donelson, Bearman & Caldwell
165 Madison Avenue, 20th Floor
Memphis, Tennessee 38103
(901) 577-8117
CALCULATION OF REGISTRATION FEE
================================================================================================================
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Per Aggregate Offering Registration
to be Registered Registered(1) Share Price Fee
---------------------------------------------------------------------------------------------------------------
Common Stock, $0.001 par
value:
---------------------------------------------------------------------------------------------------------------
To be issued under the
Amended andRestated
2001 Equity Incentive Plan 854,003 shares(2) $3.48(3) $2,971,930.44(3) $240.43
(the "2001 Plan")
---------------------------------------------------------------------------------------------------------------
To be issued under the 1999
Employee Stock Purchase
Plan (the "1999 Plan") 420,000 shares(4) $2.95(5) $1,239,000.00(5) $100.24
---------------------------------------------------------------------------------------------------------------
To be issued under the
Amended and Restated 1998
Employee, Director and
Consultant Stock Plan
(the "1998 Plan") 280,000 shares(6) $3.48(7) $974,400.00(7) $ 78.83
================================================================================================================
(1) This Registration Statement shall also cover any additional shares of the
Registrant's Common Stock that become issuable under the 2001 Plan, 1999
Plan or the 1998 Plan by reason of any dividend, stock split,
recapitalization or other similar transactions effected without receipt of
consideration that increases the number of shares of the Registrant's
Common Stock outstanding.
(2) This amount reflects from the automatic annual increase on January 1, 2003
of 854,003 shares, which annual increase is provided for in the 2001 Plan,
to the number of shares of the Registrant's Common Stock reserved for
issuance under the 2001 Plan.
(3) Computed in accordance with Rule 457(h)(1) under the Securities Act of
1933. The proposed maximum offering price per share of $3.48 was computed
by averaging the high and low prices of a share of Internet Pictures
Corporation Common Stock as reported on the Nasdaq SmallCap Market on May
21, 2003.
(4) This amount results from the automatic annual increase of 140,000 shares on
January 1, 2001, 2002 and 2003, which annual increase is provided for in
the 1999 Plan, to the number of shares of the Registrant's Common Stock
reserved for issuance under the 1999 Plan.
(5) The proposed maximum offering price per share of $2.95 was determined by
discounting the offering price per share as computed in note three above by
15% in accordance with the terms of the 1999 Plan.
(6) This amount results from the automatic annual increase of 280,000 shares on
January 1, 2001, which annual increase is provided for in the 1998 Plan, to
the number of shares of the Registrant's Common Stock reserved for issuance
under the 1998 Plan.
(7) Computed in accordance with Rule 457(h)(1) under the Securities Act of
1933. The proposed maximum offering price per share of $3.48 was computed
by averaging the high and low prices of a share of Internet Pictures
Corporation Common Stock as reported on the Nasdaq SmallCap Market on May
21, 2003.
Pursuant to Rule 462 of the 1933 Act, the Registration Statement on Form
S-8 shall be effective upon filing with the Commission.
2
STATEMENT PURSUANT TO GENERAL INSTRUCTION E - REGISTRATION OF ADDITIONAL
SECURITIES
The Registrant filed Registration Statements on Form S-8 with the
Securities and Exchange Commission on October 22, 1999 (SEC File No. 333-89499)
(the "1999 Form S-8"), June 27, 2000 (SEC File No. 333-40160) (the "2000 Form
S-8") and January 1, 2002 (SEC File No. 333-76808) (the "2002 Form S-8") in
connection with the Registrant's 1999 Employee Stock Purchase Plan (the "1999
Plan"), Amended and Restated 1998 Employee, Director and Consultant Stock Plan
(the "1998 Plan"), an amendment to the 1998 Plan and the Amended and Restated
2001 Equity Incentive Plan (the "2001 Plan"). This Registration Statement
registers additional shares of the Registrant's Common Stock to be issued
pursuant to the Registrant's 2001 Plan, 1999 Plan and 1998 Plan. Accordingly,
the contents of the Registrant's previously filed 1999 Form S-8, 2000 Form S-8
and 2002 Form S-8, including periodic reports that the Registrant filed after
filing the Forms S-8 to maintain current information about the Registrant, are
incorporated by reference into this Registration Statement pursuant to General
Instruction E of Form S-8. The shares being registered by this Registration
Statement represent the annual increase in shares issuable under the
Registrant's 2001 Plan, 1999 Plan and 1998 Plan pursuant to the terms of such
plans.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 8. EXHIBITS
Exhibit Number Description
4.1 Amended and Restated Internet Pictures Corporation 2001
Equity Incentive Plan (incorporated herein by reference to
Form S-8 as filed with the Commission on January 16, 2002
(File No. 333-76808).
4.2 1999 Employee Stock Purchase Plan (incorporated herein by
reference to Form S-4 as declared effective on December 16,
1999 (File No. 333-91139)
4.3 Amended and Restated 1998 Employee, Director and Consultant
Stock Plan (incorporated herein by reference to Form S-4 as
declared effective on December 16, 1999 (File No.
333-91139)).
5 Opinion and Consent of Baker, Donelson, Bearman & Caldwell
23.1 Consent of Baker, Donelson, Bearman & Caldwell (contained in
Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP
24 Power of Attorney (Included on signature page)
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[SIGNATURE PAGE TO FOLLOW]
3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 San Ramon, State of California, on the 22nd day of
May, 2003.
INTERNET PICTURES CORPORATION
By:/s/ Donald W. Strickland
---------------------------
Donald W. Strickland,
Chief Executive Officer
4
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Donald W. Strickland and Paul Farmer his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all 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 said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary fully to all
intents and purposes as he might or could do in person thereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his substitutes or substitute, 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 below by the following persons in the
capacities and on the date indicated.
NAME TITLE DATE
/s/ Donald W. Strickland
-------------------------
Donald W. Strickland Director, President and May 22, 2003
Chief Executive Officer
/s/ Paul Farmer
-------------------------
Paul Farmer Chief Financial Officer May 22, 2003
(Principal Accounting Officer)
/s/ Gregory S. Daily
-------------------------
Gregory S. Daily Director May 22, 2003
/s/ Michael D. Easterly
-------------------------
Michael D. Easterly Director May 22, 2003
-------------------------
Laban P. Jackson, Jr. Director May 22, 2003
/s/ David M. Wilds
-------------------------
David M. Wilds Chairman of the Board
of Directors May 22, 2003
/s/ Thomas M. Garrott
-------------------------
Thomas M. Garrott Director May 22, 2003
/s/ Andrew P. Seamons
-------------------------
Andrew P. Seamons Director May 22, 2003
EXHIBIT 5
Opinion And Consent of Baker, Donelson, Bearman & Caldwell
May 22, 2003
Internet Pictures Corporation
3160 Crow Canyon Road
San Ramon CA 94583
Gentlemen:
We have acted as securities counsel for Internet Pictures Corporation, a
Delaware corporation (the "Company"), in connection with the Company's
Registration Statement on Form S-8 (the "Registration Statement"), pursuant to
the Securities Act of 1933, as amended, relating to the Registrant's Amended and
Restated Internet Pictures Corporation 2001 Equity Incentive Plan (the "2001
Plan"), 1999 Employee Stock Purchase Plan (the "1999 Plan") and Amended and
Restated 1998 Employee, Director and Consultant Stock Plan (the "1998 Plan",
collectively with the 2001 Plan and the 1999 Plan, the "Plans"). This opinion is
being furnished in response to Item 601 of Regulation S-K and the instructions
to Form S-8.
We are familiar with the proceedings to date with respect to the proposed
offering and have examined such records, documents and matters of law and
satisfied ourselves as to such matters of fact as we have considered relevant
for purposes of this opinion.
On the basis of the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized and existing under the laws
of the State of Delaware.
2. The Plans have been duly and validly authorized and adopted, and the
shares of common stock of the Company (the "Shares") that may be issued and sold
from time to time in accordance with the Plans have been duly authorized for
issuance and will, when issued, sold and paid for in accordance with the Plans,
be validly issued, fully paid and non-assessable.
The foregoing opinion is limited to the federal laws of the United States
and the corporate laws of the State of Delaware, and we are not expressing any
opinion as to the effect of the laws of any other jurisdiction.
In rendering the foregoing opinion, we have relied to the extent we deem
such reliance appropriate as to certain matters on statements, representations
and other information obtained from public officials, officers of the Company
and other sources believed by us to be responsible.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not thereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Act.
Very truly yours,
/s/ BAKER, DONELSON, BEARMAN & CALDWELL, PC
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 27, 2003 relating to the
consolidated financial statements, which appears in Internet Pictures
Corporation's Annual Report on Form 10-K for the year ended December 31, 2002.
We also consent to the incorporation by reference of our report dated March 27,
2003 relating to the financial statement schedule, which appears in such Annual
Report on Form 10-K.
/s/ PricewaterhouseCoopers LLP
-------------------------------
PricewaterhouseCoopers LLP
San Jose, California
May 22, 2003