As
filed with the Securities and Exchange Commission on May 31,
2006
Registration
No. 333-_____
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
______________________________________________________
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
______________________________________________________
vFinance,
Inc.
(Exact
name of registrant as specified in its charter)
______________________________________________________
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Delaware
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58-1974423
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(State
or other jurisdiction of
incorporation
or organization)
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(I.R.S.
Employer
Identification
No.)
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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)
______________________________________________________
Individual
Employee and Consultant Stock Options
(Full
Title of Plan)
______________________________________________________
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 Palmer & Dodge LLP
600
Corporate Drive, Suite 514
Fort
Lauderdale, Florida 33334-3607
(954)
491-8050 (tel.)
(954)
351-7175 (fax)
______________________________________________________
CALCULATION
OF REGISTRATION FEE
|
Title
of Each Class
of
Securities to be Registered
|
Amount
to be
registered
|
Proposed
maximum
offering
price per
share
(1)
|
Proposed
maximum
aggregate
offering
price
(1)
|
Amount
of
registration
fee
|
|
Common
Stock,
$.01
par value per share. . . . .
|
14,868,752(2)
|
$0.265
|
$3,940,219.20
|
$422.00
|
| (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
May 26,
2006.
|
| (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.
There
are
hereby incorporated by reference in this Registration Statement the following
documents and information heretofore filed by the Registrant with the
Commission:
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(1)
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The
Registrant's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 2005;
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(2)
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The
Registrant’s Current Reports on Form 8-K filed with the SEC on January 17,
2006 and May 16, 2006; and
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(3)
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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.
Not
applicable.
Item
5. Interests
of Named Experts and Counsel.
Not
applicable.
Item
6. Indemnification
of Directors and Officers.
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.
Not
applicable.
Item
8.
Exhibits.
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.
(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;
(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 in the registration statement. 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 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 a 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective
registration statement; and
(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 (i) and (ii) shall not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission by the Registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934
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.
(4)
That,
for the purpose of determining liability under the Securities Act of 1933 to
any
purchaser:
(A)
Each
prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed
to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(B)
Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7)
as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose
of
providing the information required by section 10(a) of the Securities Act of
1933 shall be deemed to be part of and included in the registration statement
as
of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an underwriter,
such
date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that time shall
be
deemed to be the initial bona fide offering thereof. Provided, however, that
no
statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of
the
registration statement will, as to a purchaser with a time of contract of sale
prior to such effective date, supersede or modify any statement that was made
in
the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective
date;
(5)
That,
for the purpose of determining liability of the Registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the
securities:
The
undersigned Registrant undertakes that in a primary offering of securities
of
the undersigned Registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if
the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned Registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i)
Any
preliminary prospectus or prospectus of the undersigned Registrant relating
to
the offering required to be filed pursuant to Rule 424;
(ii)
Any
free writing prospectus relating to the offering prepared by or on behalf of
the
undersigned Registrant or used or referred to by the undersigned
Registrant;
(iii)
The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned Registrant or its securities provided
by or on behalf of the undersigned Registrant; and
(iv)
Any
other communication that is an offer in the offering made by the undersigned
Registrant to the purchaser.
(b)
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 an 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)
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.
[remainder
of page intentionally left blank]
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 31st day of May 2006.
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vFinance,
Inc. |
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By: |
/s/ Leonard
J. Sokolow |
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Leonard
J. Sokolow |
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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 Sheila C. Reinken, 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.
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Signature
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Title
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Date
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/s/
Leonard J. Sokolow
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Leonard
J. Sokolow
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Director,
President and Chief Executive Officer
(Principal
Executive Officer)
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May
31, 2006
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/s/
Sheila C. Reinken
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Sheila
C. Reinken
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Evecutive
Vice President and Chief Financial Officer
(Principal
Financial and Accounting Officer)
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May
31, 2006
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/s/
Timothy E. Mahoney
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Timothy
E. Mahoney
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Director
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May
31, 2006
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EXHIBIT
INDEX
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3.1
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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).
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3.2
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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).
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3.3
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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).
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3.4
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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).
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3.5
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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).
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3.6
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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).
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3.7
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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).
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3.8
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Unanimous
Written Consent of the Company's Board of Directors, effective as
of
January 24, 1994, amending the Bylaws (incorporated by reference
to the
Company's Annual Report on Form 10-KSB filed with the SEC on March
30,
2000).
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*5.1
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Opinion
of Edwards Angell Palmer & Dodge, LLP regarding legality of securities
being registered.
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*23.1
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Consent
of Sherb & Co., LLP.
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23.2
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Consent
of Edwards Angell Palmer & Dodge, LLP (included in Exhibit 5.1 to this
Registration Statement).
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24.1
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Power
of Attorney (included on signature pages of this Registration
Statement).
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*Filed
herewith.