As filed with the Securities and Exchange Commission on December 8, 2000
Registration No. 333-
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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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NETBANK, INC.
(Exact name of issuer as specified in its charter)
GEORGIA 58-2224352
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
11475 GREAT OAKS WAY, SUITE 100, ALPHARETTA, GEORGIA 30022
(Address of principal executive offices, including zip code)
NETBANK, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
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<S> <C> <C>
D. R. GRIMES COPY TO:
VICE CHAIRMAN AND CHIEF EXECUTIVE OFFICER
NETBANK, INC. T. CLARK FITZGERALD III, ESQ.
11475 GREAT OAKS WAY, SUITE 100 ARNALL GOLDEN & GREGORY, LLP
ALPHARETTA, GEORGIA 30022 2800 ONE ATLANTIC CENTER
(Name and address of agent for service) 1201 WEST PEACHTREE STREET
(770) 343-6006 ATLANTA, GEORGIA 30309-3450
(Telephone number, including area code, of (404) 873-8622
agent for service)
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CALCULATION OF REGISTRATION FEE
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Title of Securities Amount to be Proposed Maximum Offering Proposed Maximum Aggregate Amount of Registration Fee
Registered Registered Price Per Share (1) Offering Price (1) (1)
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Common Stock, 500,000 $6.78125 $3,390,625.00 $895.13
$.01 par value
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(1) The offering price for such shares is estimated pursuant to Rule 457(c)
and (h) under the Securities Act of 1933, as amended, solely for the
purpose of calculating the registration fee and is based upon the average
of the high and low prices of the NetBank's common stock on December 4,
2000 as quoted on The Nasdaq Stock Market.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by NetBank, Inc. ("NetBank") with the
Securities and Exchange Commission (the "Commission") hereby are incorporated
herein by reference as of their respective dates:
o NetBank's Annual Report on Form 10-K for the year ended December 31, 1999;
o NetBank's Quarterly Reports on Form 10-Q for the quarters ended March 31,
2000, June 30, 2000 and September 30, 2000; and
o The description of NetBank's common stock as contained in NetBank's
Registration Statement on Form 8-A filed pursuant to Section 12 of the
Securities Exchange Act (File No. 0-22361), and any amendment or report
filed for the purpose of updating any such description.
In addition, all reports and documents subsequently filed by NetBank
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference herein
and made a part hereof from the date of the filing of 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 modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this registration statement.
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 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.
NetBank's bylaws contain certain indemnification provisions providing that
directors, officers and employees or agents of NetBank 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 NetBank 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 NetBank, 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.
NetBank may also provide for greater indemnification than that set forth in
the bylaws if it chooses to do so, subject to approval by NetBank's
shareholders. NetBank 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. NetBank 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 NetBank
would have had the power to indemnify against such liability.
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In addition, Article X of NetBank's amended and restated articles of
incorporation, subject to certain exceptions, eliminates the potential personal
liability of a director for monetary damages to NetBank and to the shareholders
of NetBank for a breach of duty as a director. There is no elimination of
liability for:
o a breach of duty involving appropriation of a business opportunity of
NetBank;
o an act or omission not in good faith or involving intentional misconduct or
a knowing violation of law;
o a transaction from which the director derives an improper material tangible
personal benefit; or
o as to any payment of a dividend or approval of a stock repurchase that is
illegal under the Georgia Business Corporation Code.
The articles of incorporation do not eliminate or limit the right of
NetBank 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 NetBank pursuant
to the foregoing provisions, NetBank 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.
ITEM 8. EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
4.1 Form of Common Stock Certificate (Incorporated by reference to Exhibit
4.1 to the Registration Statement on Form S-1 (File No. 333-23717)).
4.2 Rights Agreement dated January 20, 2000 between NetBank and SunTrust
Bank (Incorporated by reference to Exhibit 99.1 to the Registration
Statement on Form 8-A filed January 28, 2000).
5* Opinion of Arnall Golden & Gregory, LLP
23.1* Consent of Deloitte & Touche LLP
23.2* Consent of Arnall Golden & Gregory, LLP (included in Exhibit 5)
24.1* Powers of Attorney (included as part of the signature page hereto)
99.1* NetBank, Inc. Employee Stock Purchase Plan
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* Filed herewith.
ITEM 9. UNDERTAKINGS
A. RULE 415 OFFERING.
The undersigned Registrant hereby undertakes:
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(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
1933 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 paragraph (a)(1)(i) and (a)(1)(ii) shall
not apply if 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 Section 13 or Section
15(d) of the 1934 Act that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the 1933
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. SUBSEQUENT DOCUMENTS INCORPORATED BY REFERENCE.
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 Section 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
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.
C. INDEMNIFICATION OF OFFICERS, DIRECTORS AND CONTROLLING PERSONS.
Insofar as indemnification for liabilities arising under the 1933 Act may
be permitted to directors, officers and controlling persons of the Registrant
pursuant to the provisions described under Item 6 above, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the 1933 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 1933 Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
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 Atlanta, State of Georgia, on December 7, 2000.
NETBANK, INC.
By: /s/D.R. Grimes
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D.R. Grimes
Vice Chairman and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints D.R. Grimes and Robert E. Bowers, and each of
them, his or her true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for him and in his or her name, place, and
stead, in any and all capacities, to sign any and all amendments (including
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 and about the
premises, as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their
or his or her 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 the
dates indicated.
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Name Title Date
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/s/ T. Stephen Johnson
----------------------------- Chairman of the Board December 8, 2000
T. Stephen Johnson
/s/ D.R. Grimes Vice Chairman and December 7, 2000
----------------------------- Chief Executive Officer
D.R. Grimes (Principal Executive Officer)
/s/ Michael R. Fitzgerald President, Chief Operating Officer December 7, 2000
----------------------------- and Director
Michael R. Fitzgerald
/s/ Robert E. Bowers Chief Financial Officer, December 7, 2000
----------------------------- Corporate Secretary and Director
Robert E. Bowers (Principal Financial Officer)
Ward H. Clegg Director December , 2000
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Ward H. Clegg
/s/ Donald S. Shapleigh, Jr. Director December 8, 2000
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Donald S. Shapleigh, Jr.
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/s/ J. Stephen Heard Director December 8, 2000
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J. Stephen Heard
Robin C. Kelton Director December , 2000
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Robin C. Kelton
/s/ Thomas H. Muller, Jr. Director December 7, 2000
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Thomas H. Muller, Jr.
J. Joe Ricketts Director December , 2000
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J. Joe Ricketts
/s/ W. James Stokes Director December 7, 2000
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W. James Stokes
Mack I. Whittle, Jr. Director December , 2000
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Mack I. Whittle, Jr.
/s/ Laura P. Moon Chief Accounting Officer December 7, 2000
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Laura P. Moon
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EXHIBIT INDEX
Exhibit
4.1 Form of Common Stock Certificate (Incorporated by reference to Exhibit
4.1 to the Registration Statement on Form S-1 (File No. 333-23717)).
4.2 Rights Agreement dated January 20, 2000 between NetBank and SunTrust
Bank (Incorporated by reference to Exhibit 99.1 to the Registration
Statement on Form 8-A filed January 28, 2000).
5* Opinion of Arnall Golden & Gregory, LLP
23.1* Consent of Deloitte & Touche LLP
23.2* Consent of Arnall Golden & Gregory, LLP (included in Exhibit 5)
24.1* Powers of Attorney (included as part of the signature page hereto)
99.1* NetBank, Inc. Employee Stock Purchase Plan
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* Filed herewith.
