As filed with the Securities and Exchange Commission on July ____, 2004
Securities Act Registration No. _______ Exchange Act
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ISLAND PACIFIC, INC.
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(Exact Name of Registrant as Specified in its Charter)
Delaware 33-0896617
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(State or Other Jurisdiction (IRS Employer Identification Number)
of Incorporation)
19800 MacArthur Boulevard, Suite 1200
Irvine, California 92612
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(Address of Registrant's Principal Executive Offices)
Retail Technologies International, Inc.
2003 Stock Incentive Plan
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(Full Title of the Plan)
The Corporation Trust Company
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
(302) 658-7581
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(Name, Address and Telephone Number of Agent for Service)
It is requested that copies of communications be sent to:
Ran Furman
Chief Financial Officer
19800 MacArthur Boulevard, Suite 1200
Irvine, California 92612
(877) 784-7978
Harry J. Proctor, Esq.
Solomon Ward Seidenwurm & Smith, LLP
401 B Street, Suite 1200
San Diego, California 92101
(619) 231-0303
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CALCULATION OF REGISTRATION FEE
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Title of Securities to be Amount to be Proposed Maximum Offering Proposed Maximum Offering Amount of
Registered Registered Price Per Unit Price Registration Fee
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$.0001 par value common 1,381,886 (1) $0.52 (1) $718,570.32 $91.04
stock
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) promulgated under the Securities Act of
1933, as amended (the "Securities Act"), based upon the average of the high and
low prices of our common stock on July ___, 2004 as reported on the American
Stock Exchange, which was $______ per share. $298.26 of the registration fee has
been carried forward from the regsitration statement on Form S-8 filed by the
registrant on September 12, 2003 (Registration No. 33-108747).
EXPLANATORY NOTE
Island Pacific, Inc. (the "Registrant") is filing this Registration Statement on
Form S-8 to register the issuance of up to 1,381,886 shares of Registrant's
common stock under the Retail Techonoligies International, Inc. ("RTI") 2003
Stock Incentive Plan (the "2003 Plan") that the Registrant assumed pursuant to
the Amended and Restated Agreement and Plan of Merger and Plan of
Reorganization, dated June 1, 2004, between the Registrant, RTI, IPI Merger Sub,
Inc., IPI Merger Sub II, Inc., Michael Tomczak and Jeffrey Boone, pursuant to
which the Registrant acquired RTI in a merger transaction.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I will be sent or
given to employees as specified by Rule 428(b)(1) of the Securities Act of 1933
(the "Securities Act"). In accordance with the instructions to Part I of Form
S-8, such documents will not be filed with the Securities and Exchange
Commission (the "Commission"). These documents and the documents incorporated by
reference pursuant to Item 3 of Part II of this registration statement, 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 the Registrant with the Securities and
Exchange Commission (the "Commission") are incorporated by reference into this
Registration Statement:
a) The Registrant's report on Form 10-K for the fiscal year ended
March 31, 2004 filed with the Commission on June 29, 2004.
b) All other reports filed pursuant to Sections 13(a) or 15(d) of
the Exchange Act since March 31, 2004.
c) The description of the Registrant's Common Stock par value
$0.0001, which is contained in a registration statement filed
under the Exchange Act on June 30, 1998 including any
amendment or report filed for the purpose of updating such
description.
In addition, all documents filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the
date of this Registration Statement and 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 in this Registration Statement and to be a part hereof
from the date of filing of such documents. Any statement contained in a document
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 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 (the Common Stock is registered under Section 12(g) of
the Exchange Act).
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by Delaware law, the Company's Amended and Restated
Certificate of Incorporation provides that the Company shall indemnify any
current or former director or officer and may indemnify any current or former
employee or agent against attorneys' fees and other expenses and liabilities he
may incur to defend, settle or satisfy any civil or criminal action brought
against him arising out of his association with or activities on behalf of the
Company, if he acted in good faith and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
Company may also bear the expenses of such litigation for any such person upon
his promise to repay such sums if it is ultimately determined that he is not
entitled to indemnification. Such expenditures could be substantial and may not
be recouped, even if the Company is so entitled. Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to directors,
officers or persons controlling the Company pursuant to the foregoing
provisions, the Company has been informed that, in the opinion of the Securities
and Exchange Commission, such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable.
Pursuant to the General Corporation Law of Delaware, the Company's
Amended and Restated Certificate of Incorporation excludes personal liability on
the part of its directors to the Company for monetary damages based upon any
violation of their fiduciary duties as directors, except as to liability for any
breach of the duty of loyalty, acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, acts in violation
of Section 174 of the General Corporation Law of Delaware, or any transaction
from which a director receives an improper personal benefit. This exclusion of
liability does not limit any right which a director may have to be indemnified
and does not affect any director's liability under federal or applicable state
securities laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Exhibit No. Description
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3.1 Amended and Restated Certificate of Incorporation (1)
3.2 Restated Bylaws (2)
5.1 Opinion of Solomon Ward Seidenwurm & Smith, LLP
23.1 Consent of Singer Lewak Greenbaum & Goldstein LLP
23.2 Consent of Solomon Ward Seidenwurm & Smith, LLP (included
in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
99.1 RTI 2003 Stock Incentive Plan, as amended (included
herewith)
(1) Incorporated by reference to Exhibit 3.1 to the Registrant's Form 8-K
filed July 15, 2003.
(2) Incorporated by reference to Exhibit 3.2 to the Registrant's Form 10-K
for the fiscal year ended March 31, 2001 and filed July 16, 2001.
ITEM 9. UNDERTAKINGS
(a) Rule 415 Offering.
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 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) (Section 230.424(b) of this chapter) 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;
(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 this
Registration Statement is on Form S-3, Form S-8 or Form F-3
and 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
this 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
herein, 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) Filings Incorporating Subsequent Exchange Act Documents by
Reference.
The undersigned Registrant hereby undertakes that, for proposes 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.
(h) Request for Acceleration of Effective Date or Filing of
Registration Statement on Form S-8.
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 foregoing provisions 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.
SIGNATURES
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Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
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 La Jolla, California, on July 12, 2004.
ISLAND PACIFIC, INC.,
a Delaware corporation
By: /s/ Ran Furman
---------------------------------
Ran Furman
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, the Members
of the Compensation Committee have duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized in Irvine,
California, on July 12, 2004.
ISLAND PACIFIC, INC.,
a Delaware corporation
By: /s/ Ian Bonner
---------------------------------
Ian Bonner
Compensation Committee member
ISLAND PACIFIC, INC.,
a Delaware corporation
By: /s/ Michael Silverman
---------------------------------
Michael Silverman
Compensation Committee member
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Ran Furman as 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 (including the 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 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 to be done in connection therewith, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his 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 by the following persons in the
capacities and on the dates indicated.
Signatures Capacity Date
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/s/ Michael Tomczak President, Chief Operating July 12, 2004
----------------------------- Officer and Director
Michael Tomczak
/s/ Ran Furman Chief Financial Officer July 12, 2004
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Ran Furman
/s/ Steven Beck Executive Vice President - July 12, 2004
----------------------------- Product Visionary, Director
Steven Beck
/s/ Michael Silverman Chairman of the Board July 12, 2004
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Michael Silverman
/s/ Ian Bonner Director July 12, 2004
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Ian Bonner
/s/ Lawrence Page Executive Vice President - July 12, 2004
----------------------------- Special Projects, Director
Lawrence Page