SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
MARKETING
WORLDWIDE CORPORATION
(Exact
name of issuer as specified in its charter)
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Delaware
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68-0566295
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(State or other jurisdiction of
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(IRS Employer
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incorporation or organization)
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Identification No.)
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2212
Grand Commerce Dr., Howell, Michigan 48855
(Address
of Principal Executive Offices, including ZIP Code)
2010 Stock Compensation and
Incentive Plan
(Full
title of the plan)
James C.
Marvin, CEO
2212
Grand Commerce Dr., Howell, Michigan 48855
(Name and
address of agent for service)
(Telephone
number, including area code, of agent for service)
Indicate
by check mark whether the registrant is a large accelerated filed, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer, “ “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
Large
accelerated filer
o
Accelerated
filer
o
Non-accelerated
filer
o
(do not
check if smaller reporting company)
Smaller
reporting company
x
CALCULATION
OF REGISTRATION FEE
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PROPOSED
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MAXIMUM
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MAXIMUM
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AMOUNT OF
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TITLE OF SECURITIES
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AMOUNT
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OFFERING
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AGGREGATE
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REGISTRATION
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TO BE REGISTERED
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TO BE REGISTERED
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PRICE PER SHARE
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OFFERING PRICE
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FEE
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$.001
par value
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common
stock
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15,000,000
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$
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0.15
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(1)
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$
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2,250,000
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$
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160.43
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(1) Estimated
for the purpose of computing the amount of registration fee pursuant to Rule
457(c) of the Securities Act based upon the average of the bid and asked price
per share for the common stock as of February 26, 2010.
PART
1
INFORMATION
REQUIRED IN THE SECTION 10(a)
PROSPECTUS
ITEM
1. PLAN
INFORMATION
Information
required in Part I of Form S-8 to be contained in a prospectus meeting the
requirements of Section 10(a) of the Securities Act of 1933, as amended (the
“Securities Act”), is not required to be filed with the Securities and Exchange
Commission (the “Commission”) and is omitted from this Registration Statement in
accordance with the explanatory note to Part I of Form S-8 and Rule 428(b)(1) of
the Securities Act.
ITEM
2. REGISTRANT
INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Marketing
Worldwide Corporation (“Marketing Worldwide Corporation”) will provide without
charge to each person to whom a copy of a Section 10(a) prospectus hereunder is
delivered, upon the oral or written request of such person, a copy of any
document incorporated in this Registration Statement by reference. These
documents are incorporated by reference in the Section 10(a) prospectus.
Marketing Worldwide Corporation will also make available without charge, upon
oral or written request, other documents required to be delivered pursuant to
Rule 428(b). Requests for such information should be directed to: Marketing
Worldwide Corporation, 2212 Grand Commerce Dr., Howell, Michigan 48855,
Telephone: 631 444 8090.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
ITEM
3. INCORPORATION OF
DOCUMENTS BY REFERENCE.
The
following documents filed by Marketing Worldwide Corporation (“Marketing
Worldwide Corporation”) are incorporated by reference into this Registration
Statement:
(a) Marketing
Worldwide Corporation’s
Form 10-K for the fiscal year ended
September 30, 2009 and Form 10-Q for the quarter ended December 31,
2009.
(b) All
other reports filed pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") since the end of the
fiscal year covered by the registrant’s document referred to in (a)
above.
(c) A
description of the securities of Marketing Worldwide Corporation as contained in
its registration statement on Form SB-2 (SEC Accession No.
0001019687-07-001684), filed on May 29, 2007, and including any amendment or
report filed for the purpose of updating such description; and
(d) In
addition, all documents filed by Marketing Worldwide Corporation after the date
of this Registration Statement 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 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 such documents.
ITEM
4. DESCRIPTION
OF SECURITIES.
Not
applicable.
ITEM
5. INTERESTS OF
NAMED EXPERTS AND COUNSEL.
Weed
& Co. LLP has rendered an opinion on the validity of the securities being
registered. Richard O. Weed, managing partner of Weed & Co LLP, is the owner
of 989,933 shares of Marketing Worldwide Corporation common stock and holds an
option to purchase 100,000 shares at $.30 per share.
ITEM
6. INDEMNIFICATION
OF DIRECTORS AND OFFICERS.
The Articles of Incorporation, as amended and Bylaws of
Marketing Worldwide Corporation, and Delaware law contain provisions relating to
the indemnification of officers and directors. Generally, they provide that we
may indemnify any person who was or is a party to any threatened, pending, or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, except for an action by or in right of our company, by reason of
the fact that he is or was a director, officer, employee or agent of our
company. It must be shown that he acted in good faith and in a manner, which he
reasonably believed to be in, or not opposed to, our best interests. Generally,
no indemnification may be made where the person has been determined to be
negligent or guilty of misconduct in the performance of his duty to our
company.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933
("the "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 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 a 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.
ITEM
7. EXEMPTION
FROM REGISTRATION CLAIMED.
Not
applicable.
ITEM
8. EXHIBITS.
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Exhibit No.
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Description
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5.1
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Legal
opinion of Weed & Co. LLP
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10.1
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2010
Stock Compensation and Incentive Plan
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23.1
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Consent
of Weed & Co. LLP (included in Exhibit 5.1)
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23.2
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Consent
of RBSM LLP.
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ITEM 9.
UNDERTAKINGS.
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 to:
(i) include any prospectus required
by Section 10(a)(3) of the Securities Act of 1933;
(ii) 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) 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
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 offered 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) The
undersigned hereby undertakes that, for purposes of determining any liability
under the Securities Act of 1933, each filing of registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities 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.
(5) Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of registrant pursuant
to the foregoing provisions, or otherwise, 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 registrant of expenses incurred or paid
by a director, officer or controlling person of 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 is against public policy as expressed
in the Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to
the requirements of the Securities Act of 1933, the registrant certifies 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 Howell, Michigan, on
March 1, 2010.
Marketing
Worldwide Corporation
(Registrant)
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/s/ James C. Marvin
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James
C. Marvin
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Chief
Executive Officer
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/s/ James Davis
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James
Davis
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CFO
(Principal Accounting
Officer)
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Pursuant
to the requirements of the Securities Act of 1933, the following persons in the
capacities and on the date indicated have signed this registration
statement.
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/s/ Michael Winzkowski
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Michael
Winzkowski, Director
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/s/ James C. Marvin
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James
C. Marvin, Director
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Marketing Worldwide (PK) (USOTC:MWWC)
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