SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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AFFINITY TECHNOLOGY GROUP, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 57-0991269
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1333 Main Street, Suite 101
Columbia, South Carolina 29201-3201
(Address of principal executive offices)
1995 STOCK OPTION PLAN
OF AFFINITY FINANCIAL GROUP, INC.
1996 STOCK OPTION PLAN OF
AFFINITY TECHNOLOGY GROUP, INC.
NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
OF AFFINITY TECHNOLOGY GROUP, INC.
(Full title of the plans)
Jeff A. Norris
President and Chief Executive Officer
Affinity Technology Group, Inc.
1333 Main Street, Suite 101
Columbia, South Carolina 29201-3201
(803) 254-9006
(Name, address and telephone number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share(1) price(1) fee(1)
- ---------- ----------- ------------ ------------- ------
Common
Stock, par value
$.0001 per share 4,173,000 shares $.4434/$7.0625 $15,088,500 $5,203
(1) Pursuant to Rule 457(c) and (h)(1), based on the option price ($.4434) for
shares available for issuance upon exercise of outstanding options granted
pursuant to the 1995 Stock Option Plan of Affinity Financial Group, Inc.
(2,173,000 shares) and the average ($7.0625) of the high($7.25) and low($6.875)
sale prices of the registrant's common stock on August 12, 1996, as reported by
the Nasdaq National Market, with respect to shares available for future issuance
pursuant to the 1995 Stock Option Plan of Affinity Technology Group, Inc. and
the Non-Employee Directors' Stock Option Plan of Affinity Technology Group, Inc.
(2,000,000 shares).
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Affinity Technology Group, Inc. (the "Company")
with the Securities and Exchange Commission (the "Commission") are incorporated
herein by reference:
(a) The Company's Prospectus dated April 25, 1996, filed with
the Commission on April 29, 1996 pursuant to Rule 424(b)(1) under the
Securities Act of 1933 (the "Securities Act").
(b) The Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1996, filed pursuant to Section 13 of the
Securities Exchange Act of 1934 (the "Exchange Act").
(c) The Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1996, filed pursuant to Section 13 of the
Exchange Act.
(d) The description of the Company's Common Stock, par value
$.0001 per share, contained in the Company's Registration Statement on
Form 8-A filed pursuant to Section 12(g) of the Exchange Act, including
any amendment or report filed for the purpose of updating such
description.
(e) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the period referred to in (c),
above.
All documents subsequently filed by the Company 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 remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
the filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The legality of the securities offered hereby has been passed
upon by the firm of Womble Carlyle Sandridge & Rice, PLLC, counsel to the
Company.
Item 6. Indemnification of Directors and Officers.
Article VIII, Section 8 of the Company's by-laws provides that
in addition to any rights to which its officers and directors may be entitled by
law the Company shall indemnify its officers and directors against any expenses
and liabilities reasonably incurred as a result of serving as an officer or
director of the Company to the fullest extent authorized by the Delaware General
Corporation Law.
Section 145 of the Delaware General Corporation Law generally
provides that a corporation may indemnify any officer or director who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor, against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation, except that no
indemnification may be made in respect of any claim, issue or matter as to which
such officer or director is adjudged liable to the corporation without
application to and approval by the court. Section 145 also provides that the
corporation may indemnify any officer or director who was or is a party or is
threatened to be made
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a party to any threatened, pending or completed action, suit or proceeding,
other than an action by or in the right of the corporation, by reason of the
fact that such person is or was a director or officer against expenses
(including attorneys' fees), judgements, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he 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 his
conduct was unlawful. If any officer or director is successful on the merits or
otherwise in the defense of any action, suit or proceeding, whether or not by or
in the right of the corporation, or in any claim, issue or matter therein, the
corporation must indemnify him against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
In accordance with Section 145(g) of the Delaware General
Corporation Law, the Company has obtained an insurance policy to support the
foregoing indemnify obligations. The policy provides indemnity coverage for
certain liabilities incurred by the Company's officers and directors in
connection with the performance of duties in their capacities as such, in
connection with their service on certain outside boards (e.g., civic and
charitable) and in connection with their fiduciary responsibilities under
certain benefit programs.
In addition, pursuant to Article 6 of the Company's
Certificate of Incorporation and Section 102 of the Delaware General Corporation
Law, the Company has eliminated the personal liability of its directors to the
Company and its stockholders for monetary damages for breach of fiduciary duty
as a director, other than (1) any breach of the director's duty of loyalty to
the Company or its stockholders, (2) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law; (3) for
unlawful payment of dividends or unlawful stock purchases or redemptions; (4)
for any transaction from which the director derived an improper personal
benefit; and (5) any act for which liability may not be limited or eliminated by
virtue of the provisions of Section 102(b)(7) of the Delaware General
Corporation Law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as a part of this
Registration Statement:
Number Description
4.1 Copy of the 1995 Stock Option Plan of Affinity
Financial Group, Inc., which is incorporated by
reference to Exhibit 10.10 to the Company's
Registration Statement on S-1 (File No. 333-1170)
4.2 Form of Stock Option Agreement (1995 Stock Option
Plan), which is incorporated by reference to Exhibit
10.7 of the Company's Registration Statement on S-1
(File No. 333-1170)
4.3 Copy of the 1996 Stock Option Plan of Affinity
Technology Group, Inc., which is incorporated by
reference to Exhibit 10.11 of the Company's
Registration Statement on Form S-1 (File No.
333-1170)
4.4 Form of Stock Option Agreement (1996 Stock Option
Plan), which is incorporated by reference to Exhibit
10.8 of the Company's Registration Statement on Form
S-1 (File No. 333-1170)
4.5 Copy of the Non-Employee Directors' Stock Option Plan
of Affinity Technology Group, Inc., which is
incorporated by reference to Exhibit 10.12 of the
Company's Registration Statement on Form S-1 (File
No. 333-1170)
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4.6 Form of Stock Option Agreement (Directors' Stock
Option Plan), which is incorporated by reference to
Exhibit 10.9 of the Company's Registration Statement
on Form S-1 (File No.
333-1170)
5 Opinion of Womble Carlyle Sandridge & Rice, PLLC, as
to the legality of the Common Stock being registered
23.1 Consent of Womble Carlyle Sandridge & Rice, PLLC,
which is contained in its opinion filed as Exhibit 5
23.2 Consent of Ernst & Young LLP
24 Power of Attorney
Item 9. Undertakings.
(a) The Company 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;
(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 Company pursuant to Section
13 or Section 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, 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 Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company'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 Securities
Act may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing provisions, or otherwise, the
Company 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
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liabilities (other than the payment by the Company of expenses incurred
or paid by a director, officer or controlling person of the Company 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 Company 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
THE REGISTRANT
Pursuant to the requirements of the Securities Act of 1933,
Affinity Technology Group, 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 the City of Columbia, State of South
Carolina, on this 19th day of August, 1996.
AFFINITY TECHNOLOGY GROUP, INC.
By: Jeff A. Norris
Jeff A. Norris
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on August 19, 1996.
Jeff A. Norris Edward J. Sebastian
Name: Jeff A. Norris Name: Edward J. Sebastian
Title: President, Chief Executive Officer Title: Director
and Director
(principal executive officer)
Alan H. Fishman Peter R. Wilson
Name: Alan H. Fishman Name: Peter R. Wilson
Title: Director Title: Director
Carl M. Donnelly
Name: Steven J. Gilbert Name: Carl M. Donnelly
Title: Director Title: Executive Vice President,
Chief Financial Officer
and Treasurer
(principal financial
officer)
Paul A. Jones, Jr. Richard R. Butcher
Name: Paul A. Jones, Jr. Name: Richard R. Butcher
Title: Director Title: Controller
(principal accounting
officer)
Robert M. Price
Name: Robert M. Price
Title: Director
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EXHIBIT INDEX
to
Registration Statement on Form S-8 of
Affinity Technology Group, Inc.
Exhibit
No. Description
4.1 Copy of the 1995 Stock Option Plan of
Affinity Financial Group, Inc., which is incorporated
by reference to Exhibit 10.10 of the Company's Registration
Statement on Form S-1 (File No. 333-1170)
4.2 Form of Stock Option Agreement (1995 Stock Option Plan),
which is incorporated by reference to Exhibit 10.7 of the
Company's Registration Statement on Form S-1
(File No. 333-1170)
4.3 Copy of the 1996 Stock Option Plan of Affinity Technology
Group, Inc., which is incorporated by reference to Exhibit
10-11 of the Company's Registration Statement on Form S-1
(File No. 333-1170)
4.4 Form of Stock Option Agreement (1996 Stock Option Plan),
which is incorporated by reference to Exhibit 10.8 of the
Company's Registration Statement on Form S-1 (File No.
333-1170)
4.5 Copy of the Non-Employee Directors' Stock Option Plan
of Affinity Technology Group, Inc., which is incorporated
by reference to Exhibit 10.12 of the Company's Registration
Statement on Form S-1 (File No. 333-1170)
4.6 Form of Stock Option Agreement (Directors' Stock Option Plan),
which is incorporated by reference to Exhibit 10.9 of the
Company's Registration Statement on Form S-1 (File No.
333-1170)
5 Opinion of Womble, Carlyle, Sandridge & Rice, PLLC, as to the
legality of the Common Stock being registered
23.1 Consent of Womble, Carlyle, Sandridge & Rice, PLLC, which is
contained in its opinion filed as Exhibit 5
23.2 Consent of Ernst & Young LLP
24 Power of Attorney
EXHIBIT 5
JEFFREY C. HOWLAND
Direct Dial: (910) 721-3516
Direct Fax: (910) 733-8371
E-Mail: [email protected]
August 15, 1996
Affinity Technology Group, Inc.
1333 Main Street, Suite 101
Columbia, South Carolina 29201-3201
Re: Registration Statement on Form S-8 with respect to the 1995 Stock Option
Plan of Affinity Financial Group, Inc., 1996 Stock Option Plan of Affinity
Technology Group, Inc., and Non-Employee Directors' Stock Option Plan of
Affinity Technology Group, Inc.
Ladies and Gentlemen:
We are acting as counsel for Affinity Technology Group, Inc.
(the "Company") in connection with its registration under the Securities Act of
1933, as amended, of 4,173,000 shares of its common stock, $.0001 par value (the
"Shares"), which are proposed to be offered and sold pursuant to the 1995 Stock
Option Plan of Affinity Financial Group, Inc., the 1996 Stock Option Plan of
Affinity Technology Group, Inc., and the Non-Employee Directors' Stock Option
Plan of Affinity Technology Group, Inc. (individually, a "Plan" and
collectively, the "Plans"), and pursuant to the Company's Registration Statement
on Form S-8 (the "Registration Statement") to be filed with the Securities and
Exchange Commission (the "Commission") with respect to the Shares.
In rendering this opinion, we have relied upon, among other
things, our examination of such records of the Company and certificates of its
officers and of public officials as we have deemed necessary.
Based upon the foregoing, and having regard for such legal
considerations as we have deemed relevant, we are of the opinion that the Shares
have been duly authorized and, upon issuance pursuant to the terms of the
respective Plan, will be validly issued, fully paid and nonassessable.
<PAGE>
Affinity Technology Group, Inc.
August 15, 1996
Page 2
We hereby consent to the filing of this opinion with the
Commission as an exhibit to the Registration Statement.
Sincerely,
WOMBLE CARLYLE SANDRIDGE & RICE,
A Professional Limited Liability Company
By: Jeffrey C. Howland
Jeffrey C. Howland
JCH/dal
EXHIBIT 23.2
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1995 Stock Option Plan of Affinity Financial Group, Inc.,
1996 Stock Option Plan of Affinity Technology Group, Inc. and Non-Employee
Directors' Stock Option Plan of Affinity Technology Group, Inc. of our report
dated February 2, 1996, with respect to the consolidated financial statements of
Affinity Technology Group, Inc. for the year ended December 31, 1995 included in
its Registration Statement (Form S-1 No. 333-1170) and related Prospectus filed
with the Securities and Exchange Commission.
Ernst & Young LLP
Greenville, South Carolina
August 16, 1996
EXHIBIT 24
AFFINITY TECHNOLOGY GROUP, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
We, the undersigned directors of Affinity Technology Group, Inc.
(the "Corporation"), and each of us, do hereby make, constitute and appoint Paul
A. Jones, Jr. and Carl M. Donnelly, or either of them, our true and lawful
attorney-in-fact and agent with full power and authority in said
attorney-in-fact and agent to execute for us and in our behalf the Registration
Statement under the Securities Act of 1933 on Form S-8 for the 1995 Stock Option
Plan of Affinity Financial Group, Inc., the 1996 Stock Option Plan of Affinity
Technology Group, Inc., and the Non-Employee Directors' Stock Option Plan of
Affinity Technology Group, Inc. and any post-effective amendments thereto, and
to file the same, with all exhibits thereto and all documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent 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 to all intents and purposes as we 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.
IN WITNESS WHEREOF, we the undersigned have executed this Power
of Attorney this 19th day of August, 1996.
Jeff A. Norris Robert M. Price
Jeff A. Norris Robert M. Price
Alan H. Fishman Edward J. Sebastian
Alan H. Fishman Edward J. Sebastian
Peter R. Wilson
Steven J. Gilbert Peter R. Wilson
Paul A. Jones, Jr.
Paul A. Jones, Jr.
