SmartCard Marketing Systems Inc – ‘S-8’ on 1/6/00

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Registration of Securities to be Offered to Employees Pursuant to an Employee Benefit Plan   —   Form S-8
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: S-8         Registration of Securities to be Offered to           11     38K 
                          Employees Pursuant to an Employee                      
                          Benefit Plan                                           
 2: EX-10.1     Material Contract                                      6     15K 
 3: EX-10.2     Material Contract                                      6     16K 
 4: EX-10.3     Material Contract                                      5     20K 
 5: EX-10.7     Material Contract                                     17     64K 
 6: EX-23.2     Consent of Experts or Counsel                          1      6K 

S-8   —   Registration of Securities to be Offered to Employees Pursuant to an Employee Benefit Plan
Document Table of Contents

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 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 6, 2000
                                                   REGISTRATION NO. 33-_________

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C.

FORM S-8

REGISTRATION STATEMENT

 UNDER

THE SECURITIES ACT OF 1933

EMARKETPLACE, INC.

(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)

DELAWARE                                    33-0008870
--------                                    ----------

    (STATE OR OTHER JURIS-                      (I.R.S. EMPLOYER
         DICTION OF ORGANIZATION)                    IDENTIFICATION NO.)

 255 WEST JULIAN STREET, SUITE 100, SAN JOSE, CA 95110
 -------------------------------------------------------------
 (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)

 1999 STOCK PLAN
 AND
 STOCK OPTIONS EXERCISABLE FOR
1,042,833 SHARES OF COMMON STOCK
(FULL TITLE OF THE PLAN)

L. WAYNE KILEY
 CHIEF EXECUTIVE OFFICER
255 WEST JULIAN STREET
 SUITE 100
SAN JOSE, CA 95110

 ---------------------------------------------
 (NAME AND ADDRESS OF AGENT FOR SERVICE)

(408) 275-1229
----------------------------------------------
 (TELEPHONE NUMBER, INCLUDING AREA CODE,
 OF AGENT FOR SERVICE)

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                                                        [Enlarge/Download Table]


                         CALCULATION OF REGISTRATION FEE                                       
-----------------------------------------------------------------------------------------------
                                                                 PROPOSED                      
                                                PROPOSED         MAXIMUM                       
TITLE OF                   AMOUNT               MAXIMUM          AGGREGATE         AMOUNT OF   
SECURITIES                 TO BE                OFFERING PRICE   OFFERING          REGISTRATION
TO BE REGISTERED           REGISTERED(1)        PER SHARE        PRICE             FEE         
----------------           -------------        --------------   ---------         ------------

                                                                                               
Common Stock,                                                                                  
par value $.0001 per share      42,833(2)        $1.68 (3)      $ 71,959.44       $       20.00

Common Stock,                                                                                  
par value $.0001 per share   1,000,000(4)         $1.00(3)      $ 1,000,000       $      278.00

Common Stock,                                                                                  
par value $.0001 per share   1,700,000(5)         $6.50(6)      $11,050,000       $    3,071.90
-----------------------------------------------------------------------------------------------

Total                        2,742,833                 ---              ---       $    3,369.90
-----                                                                                          


(1)      In addition,  pursuant to Rule 416 under the Securities Act of 1933, as
         amended ("Securities Act"), this Registration  Statement also covers an
         indeterminate  number  of shares  as may be  required  by reason of any
         stock dividend, recapitalization,  stock split, reorganization, merger,
         consolidation,  combination  or  exchange  of shares  or other  similar
change affecting the stock.                                   

(2)      Includes  42,833  shares of common  stock which are  issuable  upon the
exercise of stock option agreements dated January 3, 1996.    

(3)      The  proposed  maximum  offering  price  per  share is  based  upon the
         designated  exercise prices as stated in the  appropriate  Stock Option
Agreement under which the options were granted.               

(4)      Includes  815,000 shares of common stock which are issuable under stock
         option  agreements dated as of December 31, 1996, and 185,000 shares of
         common stock which are issuable under stock option  agreements dated as
of September 17, 1998.                                        

(5)      Includes  1,700,000 shares of Common Stock reserved under the Company's
1999 Stock Plan.                                              

(6)      Estimated  solely for the purpose of calculating the  registration  fee
         based upon the closing  price of the shares of Common Stock on December
31, 1999 of $6.50 on the OTC Bulletin Board.                  

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PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

ITEM 1. Plan Information                                                        

ITEM 2. Registrant Information and Employee Plan Annual Information             

 PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

ITEM 3. Incorporation of Documents By Reference                                 

              The following documents, as filed with the Securities and Exchange
Commission by eMarketplace, Inc., a Delaware corporation (the "Corporation" or  
"Registrant"), are incorporated herein by reference:                            

       (1) Current Report on Form 8-K/A filed on December 27, 1999

    (2) Current Report on Form 8-K filed on December 8, 1999

              (3)  Quarterly  Report  on Form  10-QSB/A  for the  quarter  ended
September 30, 1999.                                                             

              (4) Annual Report on Form 10-KSB for the year ended June 30, 1999.

   (5) Current Report on Form 8-K/A filed on July 9, 1999.

 (6) Current Report on Form 8-K filed on May 10, 1999.

              (7) The  description  of the Common  Stock,  par value  $.0001 per
share  ("Common  Stock"),  of the  Corporation  contained  in the  Corporation's
registration statement filed under Section 12 of the Exchange Act, including any
amendment or report filed for the purpose of updating such description.         

         All  documents  filed by the  Corporation  pursuant  to Section  13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended ("Exchange
Act"), subsequent to the effective date of this Registration Statement and prior
to the filing of a  post-effective  amendment which indicate that all securities
offered have been sold or which registers all securities then remaining  unsold,
shall be deemed to be  incorporated by reference in the  Registration  Statement
and to be part thereof  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
other  subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so

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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 (the "DGCL")
provides that a corporation may indemnify its directors and officers, as well as
other employees and individuals,  against expenses (including  attorneys' fees),
judgments,  fines and amounts paid in settlement in  connection  with  specified
actions,  suits or  proceedings,  whether  civil,  criminal,  administrative  or
investigative  (other than an action by or in the right of the  corporation -- a
"derivative  action"),  if  they  acted  in  good  faith  and in a  manner  they
reasonably  believed  to be in or not  opposed  to  the  best  interests  of the
corporation,  and,  with respect to any criminal  action or  proceeding,  had no
reasonable  cause to believe their conduct was unlawful.  A similar  standard is
applicable in the case of derivative actions,  except that  indemnification only
extends to expenses (including  attorneys' fees) incurred in connection with the
defense or settlement of such actions,  and the statute  requires court approval
before  there  can  be  any   indemnification   in  which  the  person   seeking
indemnification  has been found liable to the corporation.  The statute provides
that it is not  exclusive  of other  indemnification  that may be  granted  by a
corporation's  charter,  bylaws,  disinterested director vote, stockholder vote,
agreement or otherwise.                                                         

              Article Tenth of the  Registrant's  Certificate  of  Incorporation
states as follows:                                                              

              The Corporation  shall, to the fullest extent permitted by Section
145 of the General Corporation Law of the State of Delaware,  as the same may be
amended and supplemented, indemnify any and all persons whom it shall have power
to indemnify  under said  section from and against any and all of the  expenses,
liabilities, or other matters referred to in or covered by said section, and the
indemnification  provided for herein shall not be deemed  exclusive of any other
rights to which those  indemnified  may be entitled under any Bylaw,  agreement,
vote of stockholders or disinterested directors or otherwise,  both as to action
in his official capacity and as to action in another capacity while holding such
office,  and shall  continue  as to a person  who has  ceased to be a  director,
officer,  employee,  or agent and shall  inure to the  benefit  of their  heirs,
executors, and administrators of such a person.                                 

ITEM 7.  Exemption from Registration Claimed                                    

Not Applicable.                                     

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ITEM 8.    Exhibits                                                             

The  following  is a  complete  list  of  exhibits  filed  as  a  part  of  this
Registration Statement:                                                         

EXHIBIT NO.       DOCUMENT                                                      
-----------       --------                                                      

5.1    Opinion of Berlack, Israels & Liberman LLP.                              

10.1   Form of Stock Option Agreement issued on January 3, 1996.                

10.2   Form of Stock Option Agreement issued on December 31, 1996.              

10.3   Form of Stock Option Agreement issued on September 17, 1998.             

10.4   1999 Stock Plan                                                          

23.1   Consent of Berlack, Israels & Liberman LLP (included in Exhibit 5.1).    

23.2   Consent of Moore Stephens, P.C.                                          

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 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 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  (1)(i) and (1)(ii) do not apply if the information is
required to be included in a  post-effective  amendment by those  paragraphs  is
contained in periodic reports filed by the registrant  pursuant to Section 13 or
15(d) of the Exchange Act 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

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a new registration statement relating to the securities offered therein, and the
offering of such  securities  at that time be deemed to be the initial BONA FIDE
offering thereof; and                                                           

         (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  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 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 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 herein, 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 (the  "Securities  Act") may be permitted to  directors,
officers and  controlling  persons of the registrant  pursuant to the provisions
described in item 6, 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  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.                                                     

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SIGNATURES

         Pursuant to the  requirement of the Securities Act of 1933, as amended,
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 San Jose, California, on the 3rd day of January, 2000.      

                EMARKETPLACE, INC.

                    BY: /s/ L. WAYNE KILEY
                                         ---------------------------------------
                            L. Wayne Kiley
                                        Chief  Executive  Officer,
                                         (Chief  Accounting Officer)
                            and Director

         Pursuant  to the  requirements  of the  Securities  Act of  1933,  this
Registration  Statement  or  Amendments  thereto  has been  signed  below by the
following persons in the capacities and on the dates indicated.                 

SIGNATURE                           TITLE                           DATE        
---------                           -----                           ----        

/s/ ROBERT M. WALLACE        Chairman of the Board             January 3, 2000  
------------------------     of Directors                                       
Robert M. Wallace                                                               

/s/ WAYNE KILEY              Chief Executive Officer           January 3, 2000  
------------------------     (Chief Accounting Officer)                         
L. Wayne Kiley               and Director                                       

/s/ THOMAS E. EVANS, JR.                                                        
------------------------     Director                          January 3, 2000  
Thomas E. Evans, Jr.                                                            

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EMARKETPLACE, INC.

EXHIBITS

TO

REGISTRATION STATEMENT ON FORM S-8

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 INDEX TO EXHIBITS

EXHIBIT NO.       DOCUMENT                                                      
-----------       --------                                                      

5.1      Opinion of Berlack, Israels & Liberman LLP.                            

10.1     Form of Stock Option Agreement issued on January 3, 1996.              

10.2     Form of Stock Option Agreement issued on December 31, 1996.            

10.3     Form of Stock Option Agreement issued on September 17, 1998.           

10.4     1999 Stock Plan                                                        

23.1     Consent of Berlack, Israels & Liberman LLP (included in Exhibit 5.1).  

23.2     Consent of Moore Stephens, P.C.                                        

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EXHIBIT 5.1 

 OPINION OF BERLACK, ISRAELS & LIBERMAN, LLP

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 [LETTERHEAD OF BERLACK, ISRAELS & LIBERMAN LLP]

 January 4, 2000

eMarketplace, Inc.                                                              

255 West Julian Street                                                          

Suite 100                                                                       

San Jose, CA  95110                                                             

Ladies and Gentlemen:                                                           

         We have acted as counsel for eMarketplace, Inc., a Delaware corporation
(the  "Company"),  in  connection  with a  Registration  Statement  on Form  S-8
("Registration Statement") being filed contemporaneously herewith by the Company
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Securities  Act"),  covering an aggregate of 2,742,833 shares (the
"Shares") of the Company's  Common  Stock,  $.0001 par value  ("Common  Stock"),
1,700,000  Shares of which are issuable under the Company's 1999 Stock Plan (the
"Stock  Plan"),  42,833  Shares of which are issuable upon the exercise of stock
option  agreements  dated January 3, 1996,  815,000 Shares of which are issuable
under stock option  agreements dated as of December 31, 1996, and 185,000 Shares
of which are issuable  under stock option  agreements  dated as of September 17,
1998 (collectively, the "Stock Option Agreements").                             

         In that connection,  we have examined the Certificate of Incorporation,
as amended,  and the By-Laws of the Company,  the  Registration  Statement,  the
Stock  Plan,  the  Stock  Option  Agreements,  and such  other  instruments  and
documents as we have deemed relevant under the circumstances.                   

         In making the aforesaid  examinations,  we have assumed the genuineness
of all  signatures  and the  conformity  to  original  documents  of all  copies
furnished to us as original or photostatic copies. We have also assumed that the
corporate records of the Company include all corporate  proceedings taken by the
Company to date.                                                                

         Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly and validly  authorized  and,  when issued and paid for as
described  in the Stock  Plan (or the Stock  Option  Agreement  issued  pursuant
thereto)  or Stock  Option  Agreements,  as the  case  may be,  will be duly and
validly issued, fully paid and nonassessable.                                   

         We hereby  consent to the use of this opinion as herein set forth as an
exhibit to the Registration Statement.                                          

                     Very truly yours,

                                       /s/ BERLACK, ISRAELS & LIBERMAN LLP
                                          --------------------------------
                                           Berlack, Israels & Liberman LLP

Dates Referenced Herein   and   Documents Incorporated by Reference

				Referenced-On Page
This ‘S-8’ Filing		Date		First		Last			Other Filings
Filed on / Effective on:		1/6/00		1
		1/4/00		11
		1/3/00		7
		12/31/99		2					10QSB
		12/27/99		3					8-K/A
		12/8/99		3					8-K
		9/30/99		3					10QSB,  10QSB/A,  NT 10-Q
		7/9/99		3					8-K/A,  SC 13D
		6/30/99		3					10KSB,  NT 10-K
		5/10/99		3					8-K
		9/17/98		2		11
		12/31/96		2		11			10QSB,  NT 10-Q
		1/3/96		2		11
									List all Filings