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As filed with the Securities and Exchange Commission on December 23, 1997
Registration No. 333-_________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
NET.B@NK, INC.
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(Exact name of Registrant as specified in its charter)
Georgia 58-2224352
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
7000 Peachtree Dunwoody Road, Building 10, Suite 300, Atlanta, Georgia 30328
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(Address of principal executive offices and zip code)
NET.B@NK, INC. 1996 STOCK INCENTIVE PLAN
(Full Title of the Plan)
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WALTER G. MOELING, IV, ESQ.
POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
191 PEACHTREE STREET, N.E., 16TH FLOOR
ATLANTA, GEORGIA 30303
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(Name and address of agent for service)
(404) 572-6600
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(Telephone number, including area code, of agent for service)
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this registration statement becomes effective.
If the only securities being registered on this form are to be offered
pursuant to dividend or interest reinvestment plans, please check the
following box. / /
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, other than securities offered only in connection with dividend
or interest reinvestment plans, check the following box. /x/
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /_________________
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /_________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Title of Amount Proposed Maximum Proposed Maximum Amount of
Securities to to be Offering Price Aggregate Offering Registration
be Registered Registered Per Share Price Fee
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<S> <C> <C> <C> <C>
Common Stock, 397,500 $11.5625 (2) $4,596,094 (3) $1,356
$.01 par value shares (1)
</TABLE>
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(1) Representing shares to be issued and sold by the Registrant under the
Net.B@nk, Inc. 1996 Stock Incentive Plan (the "Plan"). This Registration
Statement also covers such indeterminable number of additional shares as may
become issuable to prevent dilution in the event of a stock split, stock
dividend, reclassification or other similar transaction pursuant to the terms
of the Plan.
(2) The average of the high and low prices of the Registrant's Common Stock
as reported by the Nasdaq Stock Market for December 19, 1997.
(3) The aggregate offering price is calculated solely for the purpose of
determining the registration fee pursuant to Rule 457(h)(1) under the
Securities Act of 1933, as amended.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information required to be set forth in the
prospectus under Section 10(a) of the Securities Act of 1933, as amended (the
"Securities Act") and Rule 428 promulgated thereunder will be sent or given
to participants in the Plan as specified in Rule 428(b)(1) under the
Securities Act.
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 3. Incorporation of Documents by Reference.
The following documents filed by Net.B@nk, Inc. (the "Company") with the
Securities and Exchange Commission (the "Commission") are hereby incorporated
by reference herein:
(1) The Company's prospectus dated July 28, 1997 filed with the Commission
pursuant to Rule 424(b) under the Securities Act (Regis. No. 333-23717).
(2) The Company's quarterly report on Form 10-Q for the quarter ended June
30, 1997 (File No. 0-22361);
(3) The Company's quarterly report on Form 10-Q for the quarter ended
September 30, 1997 (File No. 0-22361); and
(4) The description of Net.B@nk, Inc. Common Stock set forth in the
Company's Registration Statement on Form 8-A filed pursuant to Section
12 of the Exchange Act (File No. 0-22361), and any amendment or report
filed for the purpose of updating any such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the termination of
this offering, shall be deemed to be incorporated by reference in this
Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, on the written or
oral request of any such person, a copy of any or all of the documents which
have been incorporated herein by reference but not delivered herewith (other
than the exhibits to such documents). Such request, in writing or by
telephone, should be directed to the Corporate Secretary, Net.B@nk, Inc.,
7000 Peachtree Dunwoody Road, Building 10, Suite 300, Atlanta, Georgia 30328.
Item 6. Indemnification of Directors and Officers.
Section 14-2-851 of the Georgia Business Corporation Code provides that a
corporation may indemnify its directors and officers against civil and
criminal liabilities. Directors and officers may be indemnified against
expenses if they acted in good faith and in a manner reasonably believed to
be in or not opposed to the best interest of the corporation, if they have
not been adjudged liable on the basis of the improper receipt of a personal
benefit and, with respect to any criminal action, if they had no reasonable
cause to believe their conduct was unlawful. A director or officer may be
indemnified against expenses incurred in connection with a derivative suit if
he or she acted in good faith and in a manner reasonably believed to be in or
not opposed to the best interest of the corporation, except that no
indemnification may be made without court approval if such person was
adjudged liable for
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negligence or misconduct in the performance of his or her duty to the
corporation. Statutory indemnification is not exclusive of any rights
provided by any bylaw, agreement, vote of shareholders or disinterested
directors or otherwise.
The Company's Bylaws contain certain indemnification provisions providing
that directors, officers and employees or agents of the Company will be
indemnified against expenses actually and reasonably incurred by them if they
are successful on the merits of a claim or proceeding. When a case or dispute
is not ultimately determined on its merits (i.e., it is settled), the
indemnification provisions provide that the Company will indemnify directors
when they meet the applicable standard of conduct. The applicable standard
of conduct is met if the director acted in good faith and in a manner he or
she reasonably believed to be in, or not opposed to, the best interests of
the Company, and with respect to an employee benefit plan, for a purpose the
director believed in good faith to be in the interests of the participants
and beneficiaries of the plan. The standard of conduct with respect to any
criminal action or proceeding is met if the director had no reasonable cause
to believe his or her conduct was unlawful. Whether the applicable standard
of conduct has been met is determined by the Board of Directors, the
shareholders or independent legal counsel in each specific case.
The Company may also provide for greater indemnification than that set
forth in the Bylaws if it chooses to do so, subject to approval by the
Company's shareholders. The Company may not, however, indemnify a director
for liability arising out of circumstances that constitute exceptions to
limitation of a director's liability for monetary damages. The Company may
purchase and maintain insurance on behalf of any director against any
liability asserted against such person and incurred by him or her in any such
capacity, whether or not the Company would have had the power to indemnify
against such liability.
In addition, Article X of the Company's Amended and Restated Articles of
Incorporation (the "Articles"), subject to certain exceptions, eliminates the
potential personal liability of a director for monetary damages to the
Company and to the shareholders of the Company for a breach of duty as a
director. There is no elimination of liability for (a) a breach of duty
involving appropriation of a business opportunity of the Company, (b) an act
or omission not in good faith or involving intentional misconduct or a
knowing violation of law, (c) a transaction from which the director derives
an improper material tangible personal benefit, or (d) as to any payment of a
dividend or approval of a stock repurchase that is illegal under the Georgia
Business Corporation Code. The Articles do not eliminate or limit the right
of the Company or its shareholders to seek injunctive or other equitable
relief not involving monetary damages.
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 Commission such indemnification is against public
policy as expressed in the Securities Act and is therefore unenforceable.
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Item 8. Exhibits.
The following exhibits are filed with or incorporated by reference into
this Registration Statement pursuant to Item 601 of Regulation S-K:
Exhibit
No. Description
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5.1 Opinion of Powell, Goldstein, Frazer & Murphy LLP with respect to the
securities being registered.
23.1 Consent of counsel (included in Exhibit 5.1).
23.2 Consent of Deloitte & Touche, LLP.
24 Power of Attorney (see signature pages to this Registration
Statement).
Item 17. 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;
(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 the 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;
(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
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 by the Registrant pursuant to
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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 undersigned Registrant hereby undertakes that, for purposes 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all
requirements for filing on Form S-8 and has caused this Registration
Statement on Form S-8 to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Atlanta, State of Georgia on
December 23, 1997.
NET.B@NK, INC.
By: /s/ D.R. Grimes
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D.R. Grimes
Vice Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
on the signature pages to this Registration Statement constitutes and
appoints D. R. Grimes and Robert E. Bowers, and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the undersigned and in his name, place, and stead, in any
and all capacities, to sign any and all amendments to this Registration
Statement, and to file the same, with all exhibits hereto and other documents
in connection herewith with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents and each of them, full power and
authority to do so 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 he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or either of them, or their or his
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 December 23, 1997.
Name Position
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/s/ T. Stephen Johnson Chairman of the Board
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T. Stephen Johnson
/s/ D.R. Grimes Vice Chairman, Chief Executive Officer and
- ----------------------------- Director (principal executive officer)
D.R. Grimes
[Signatures continue on following page]
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[Signatures continued from previous page]
<TABLE>
<CAPTION>
Name Position
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<C> <C>
/s/ Donald S. Shapleigh, Jr. President, Chief Operating Officer and Director
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Donald S. Shapleigh Jr.
/s/ Robert E. Bowers Chief Financial Officer and Director
---------------------------- (principal financial and accounting officer)
Robert E. Bowers
/s/ Ward H. Clegg Director
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Ward H. Clegg
/s/ J. Stephen Heard Director
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J. Stephen Heard
/s/ Robin C. Kelton Director
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Robin C. Kelton
/s/ John T. Moore Director
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John T. Moore
/s/ Thomas H. Muller, Jr. Director
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Thomas H. Muller, Jr.
/s/ W. James Stokes Director
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W. James Stokes
/s/ Mack I. Whittle, Jr. Director
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Mack I. Whittle, Jr.
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EXHIBIT INDEX
Exhibit
No. Description
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5.1 Opinion of Powell, Goldstein, Frazer & Murphy LLP
with respect to the securities being registered,
including consent.
23.1 Consent of counsel (included in Exhibit 5.1).
23.2 Consent of Deloitte & Touche, LLP.
24 Power of Attorney (see signature pages to this
Registration Statement).
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EXHIBIT 5.1
POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
191 Peachtree Street N.E.
Suite 1600
Atlanta, Georgia 30303
(404) 572-6600
December 23, 1997
Net.B@nk, Inc.
7000 Peachtree Dunwoody Road
Building 10, Suite 300
Atlanta, Georgia 30328
Re: Registration Statement on Form S-8
Net.B@nk, Inc. 1996 Stock Incentive Plan
Ladies and Gentlemen:
We have served as counsel for Net.B@nk, Inc., a Georgia corporation (the
"Company"), in connection with the registration under the Securities Act of
1933, as amended, pursuant to a Registration Statement on Form S-8 (the
"Registration Statement"), of an aggregate of 397,500 shares (the "Shares")
of common stock, $.01 par value, of the Company, to be offered and sold by
the Company pursuant to the Net.B@nk, Inc. 1996 Stock Incentive Plan (the
"Plan").
We have examined and are familiar with originals or copies (certified,
photostatic or otherwise identified to our satisfaction) of such documents,
corporate records and other instruments relating to the incorporation of the
Company and the authorization of the shares to be issued pursuant to the Plan
as we have deemed necessary and advisable. In such examinations, we have
assumed the genuineness of all signatures on all originals and copies of
documents we have examined, the authenticity of all documents submitted to us
as originals and the conformity to original documents of all certified,
conformed or photostatic copies. As to questions of fact material and
relevant to our opinion, we have relied upon certificates or representations
of Company officials and of appropriate governmental officials.
We express no opinion as to matters under or involving the laws of any
jurisdiction other than the corporate law of the State of Georgia.
<PAGE>
Net.B@nk, Inc.
December 23, 1997
Page 2
Based upon and subject to the foregoing and having regard for such legal
considerations as we have deemed relevant, it is our opinion that the Shares
have been duly authorized and that upon the issuance and delivery of the
Shares and payment therefor as provided in the Plan and as contemplated by
the Registration Statement, such Shares will be legally and validly issued,
fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
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EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Net.B@nk, Inc. on Form S-8 of our reports dated March 18, 1997, appearing
in the Prospectus dated July 28, 1997 filed with the Securities and Exchange
Commission pursuant to Rule 424(b) under the Securities Act of 1933, as
amended.
DELOITTE & TOUCHE LLP
Atlanta, Georgia
December 22, 1997
