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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 1, 2001
REGISTRATION STATEMENT NO. 333-________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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E COM VENTURES, INC.
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
FLORIDA 65-0977964
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(STATE OR OTHER JURISDICTION OF INCORPORATION (IRS EMPLOYER
OR ORGANIZATION) IDENTIFICATION NUMBER)
11701 N.W. 101ST ROAD
MIAMI, FLORIDA 33178
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
2000 STOCK OPTION PLAN
2000 DIRECTORS STOCK OPTION PLAN
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ILIA LEKACH
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
11701 N.W. 101ST ROAD
MIAMI, FLORIDA 33178
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(NAME AND ADDRESS OF AGENT FOR SERVICE)
(305) 889-1600
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(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPY TO:
KENNETH C. HOFFMAN, ESQ.
GREENBERG TRAURIG, P.A.
1221 BRICKELL AVENUE
MIAMI, FLORIDA 33131
(305) 579-0500
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE(1) REGISTRATION FEE
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COMMON STOCK 1,620,000 $0.50 - $1.00 $1,122,690 $281
$.01 PAR VALUE SHARES
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(1) Estimated solely for the purpose of calculation the registration fee
and computed in accordance with Rule 457(h) of the Securities Act of
1933, as amended on the basis of (i) the actual price of (A) $0.94 for
10,000 options (B) $0.50 for 75,000 options, (C) $0.88 for 261,500
options, (D) $0.62 for 10,000 options, (E) $0.84 for 10,000 options
granted under the 2000 Stock Option Plan; (ii) the actual price of (A)
$0.88 for 14,000 and (B) $1.00 for 2,000 options granted under the 2000
Directors Stock Option Plan and (iii) an assumed price of $0.66 per
share for 1,237,500 shares based on the average of the high and low
sale price of the common stock on the Nasdaq National Stock Market on
September 26, 2001.
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PART I. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
We hereby incorporate by reference into this Registration Statement the
following documents or portions thereof as indicated:
(a) our Annual Report on Form 10-K for the year ended February 3,
2001;
(b) our Quarterly Reports on Form 10-Q for the quarterly period
ended May 5, 2001 and the quarterly period ended August 4,
2001;
(c) all other reports filed by us pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") since February 3, 2001; and
(d) the description of our Common Stock contained in our
registration statement on Form 8-A, including any amendments
to such registration statement;
In addition, 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 hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated herein by reference and to be a part
hereof from the date of filing of such documents.
Any statement contained in this Registration Statement, or in a
document incorporated herein by reference shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein, or in a subsequently filed document incorporated
herein by reference, 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.
Florida Business Corporation Act. Section 607.0850 of the Florida
Business Corporation Act (the "FBCA") generally permits us to indemnify our
directors, officers, employees or other agents who are subject to any
third-party actions because of their service to us if such persons acted in good
faith and in a manner they reasonably believed to be in, or not opposed to, our
best interests. If the proceeding is a criminal one, such person must also have
had no reasonable cause to believe his conduct was unlawful. In addition, we may
indemnify our directors, officers, employees or other agents who are subject to
derivative actions against expenses and amounts
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paid in settlement which do not exceed, in the judgment of the board of
directors, the estimated expense of litigating the proceeding to conclusion,
actually and reasonably incurred in connection with the defense or settlement of
such proceeding, if such person acted in good faith and in a manner such person
reasonably believed to be in, or not opposed to, our best interests. To the
extent that a director, officer, employee or other agent is successful on the
merits or otherwise in defense of a third-party or derivative action, such
person will be indemnified against expenses actually and reasonably incurred in
connection therewith. This Section also permits a corporation further to
indemnify such persons by other means unless a judgment or other final
adjudication establishes that such person's actions or omissions which were
material to the cause of action constitute (1) a crime (unless such person had
reasonable cause to believe his conduct was lawful or had no reasonable cause to
believe it unlawful), (2) a transaction from which he derived an improper
personal benefit, (3) a transaction in violation of Section 607.0834 of the FBCA
(unlawful distributions to shareholders), or (4) willful misconduct or a
conscious disregard for the best interests of the corporation in a proceeding by
or in the right of the corporation to procure a judgment in its favor or in a
proceeding by or in the right of a shareholder.
Furthermore, Section 607.0831 of the FBCA provides, in general, that no
director shall be personally liable for monetary damages to us or any other
person for any statement, vote, decision, or failure to act, regarding corporate
management or policy, unless: (a) the director breached or failed to perform his
duties as a director; and (b) the director's breach of, or failure to perform,
those duties constitutes (i) a violation of criminal law, unless the director
had reasonable cause to believe his conduct was lawful or had no reasonable
cause to believe his conduct was unlawful, (ii) a transaction from which the
director derived an improper personal benefit, either directly or indirectly,
(iii) a circumstance under which the liability provisions of Section 607.0834 of
the FBCA are applicable, (iv) in a proceeding by or in our right to procure a
judgment in our favor or by or in the right of a shareholder, conscious
disregard for our best interest, or willful misconduct, or (v) in a proceeding
by or in the right of someone other than us or a shareholder, recklessness or an
act or omission which was committed in bad faith or with malicious purpose or in
a manner exhibiting wanton and willful disregard of human rights, safety, or
property. The term "recklessness," as used above, means the action, or omission
to act, in conscious disregard of a risk: (a) known, or so obvious that it
should have been known, to the directors; and (b) known to the director, or so
obvious that it should have been known, to be so great as to make it highly
probable that harm would follow from such action or omission.
Amended and Restated Articles of Incorporation. Our Amended and
Restated Articles of Incorporation provide that we shall indemnify and may
advance expenses on behalf of our officers and directors to the fullest extent
not prohibited by law in existence either now or hereafter.
Insurance. In addition to the foregoing, the Registrant carries
insurance permitted by the laws of Florida on behalf of directors, officers,
employees or agents which may cover, among other things, liabilities under the
Securities Act of 1933, as amended.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS
See "Exhibit Index" on page II-7 below.
ITEM 9. UNDERTAKINGS
(a) The undersigned 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 (the "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;
(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 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 15(d)
of the Exchange Act of 1934, as amended (the "Exchange Act")
that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability
under the 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 undersigned hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the corporation'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
Act may be permitted to directors, officers and controlling persons of the
corporation pursuant to the foregoing provisions, or otherwise, the corporation
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act
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and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the corporation of expenses
incurred or paid by a director, officer or controlling person of the corporation
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 corporation 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.
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SIGNATURES
Pursuant to the requirements of the Act, we certify that we have
reasonable grounds to believe that we meet all of the requirements for filing on
Form S-8 and have duly caused this Registration Statement to be signed on our
behalf by the undersigned, thereunto duly authorized, in the City of Miami,
State of Florida on September 28, 2001.
E COM VENTURES, INC.
By: /s/ Ilia Lekach
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Name: Ilia Lekach
Title: Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Ilia Lekach and A. Mark Young, or either of them, as our true and
lawful attorney-in-fact, with full powers of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
or all amendments, including any post-effective amendments, to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
to be filed in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that said attorney-in-fact or
their substitutions, each acting alone, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Act, this Registration Statement
has been signed below by the following persons in the capacities and on the
dates indicated.
SIGNATURE TITLE DATE
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/s/ Ilia Lekach Chairman of the Board and Chief Executive September 28, 2001
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Ilia Lekach
/s/ A. Mark Young Chief Financial Officer and Director September 28, 2001
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A. Mark Young
/s/ Jeffrey Geller Director September 28, 2001
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Jeffrey Geller
/s/ Donovan Chin Director September 28, 2001
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Donovan Chin
/s/ Carole Ann Taylor Director September 28, 2001
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Carole Ann Taylor
/s/ Horacio Groisman, M.D. Director September 28, 2001
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Horacio Groisman, M.D.
/s/ Zalman LeKach Director September 28, 2001
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Zalman Lekach
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Director
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James Fellus
Director
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Ana Maria Fernandez Haar
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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4.1 2000 Stock Option Plan
4.2 2000 Directors Stock Option Plan
5.1 Opinion of Greenberg Traurig, P.A.
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of PriceWaterhouseCoopers, LLP
23.3 Consent of Greenberg Traurig, P.A. (contained in its opinion filed as
Exhibit 5.1 hereto)
24.1 Power of Attorney is included in the Signature section of the
Registration Statement
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