As filed with the Securities and Exchange Commission on October ___,
1998
Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
FACTUAL DATA CORP.
(Exact name of registrant as specified in its charter)
Colorado 84-1449911
(State or other jurisdiction of (I.R.S. employer
Incorporation or organization) identification number)
5200 Hahns Peak Drive
Loveland,Colorado 80538
(Address of principal (Zip code)
executive offices)
1997 Stock Incentive Plan
(Full title of plan)
Jerald H. Donnan, President
Factual Data Corp.
5200 Hahns Peak Drive
Loveland, Colorado 80538
(Name and address of agent for service)
(970) 663-5700
(Telephone number, including area code, of agent for service)
Copies to:
Samuel E. Wing, Esq.
Jones & Keller, P.C.
1625 Broadway, Suite 1600
Denver, Colorado 80202
Telephone: (303) 573-1600
Facsimile: (303) 893-6506
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CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------
Proposed Proposed
Maximum Maximum
Offering Aggregate Amount of
Title of Each Class Amount to be Price Offering Registration
of Securities Registered(3) Per Share Price Fee
- ------------------- ------------- ----------- --------- ------------
Common Stock(1) 31,500 $5.50(2) $173,250 $51
(1) Shares underlying options granted to 21 employees and three directors under
the 1997 Stock Incentive Plan.
(2) The option exercise price is $5.50 per share.
(3) Any additional shares of Common Stock to be issued as a result of stock
dividends, stock splits, or similar transactions shall be covered by this
Registration Statement as provided in Rule 416.
<PAGE>
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The document containing information specified by Part I of the form of
Registration Statement on Form S-8, promulgated under the Securities Act of
1933, as amended (the "1933 Act"), will be sent or given to participants in the
1997 Stock Incentive Plan as specified in Rule 428(b)(1) promulgated by the
Securities and Exchange Commission (the "Commission") under the 1933 Act. Such
document is not being filed with the Commission but constitutes (along with the
documents incorporated by reference into this Form S-8 Registration Statement
(the "Registration Statement") pursuant to Item 3 of Part II hereof), a
prospectus that meets the requirements of Section 10(a) of the 1933 Act.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents are hereby incorporated by reference into
this Registration Statement:
1. The Registrant's Prospectus filed under Rule 424(b) of the 1933 Act dated
May 15, 1998, and included as part of Registration Statement No. 333-47051.
2. The Registrant's Quarterly Report on Form 10-Q for the quarter ended March
31, 1998.
3. The Registrant's Quarterly Report on Form 10-Q for the quarter ended June
30, 1998.
4. The Registrant's Reports on Form 8-K dated August 10, 1998, August 11,
1998, September 16, 1998 and October 14, 1998.
5. All documents subsequently filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act prior to
the filing of a post-effective amendment that indicates that all shares
offered hereby have been sold or that deregisters all shares then remaining
unsold, shall be deemed to be incorporated by reference and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Counsel. Samuel E. Wing, a shareholder of Jones & Keller, P.C., counsel to the
Registrant, through his SEP/IRA Plan owns 6,625 shares of the Registrant's
common stock. An associate of that firm also owns through his IRA Plan 500
shares of such stock and 500 warrants to purchase common stock.
Item 6. Indemnification of Officers and Directors.
Directors, officers, employees and agents of the Registrant may be entitled to
benefit from the indemnification provisions contained in the Colorado Business
Corporation Act, Title Seven of the Colorado Revised Statutes (the "CBCA") and
the Registrant's Articles of Incorporation. In addition, certain provisions in
the CBCA and the Articles of Incorporation limit the liability of directors of
the Registrant. The general effect of these provisions is summarized below:
<PAGE>
Article 109 of the CBCA permits a Colorado corporation to indemnify any person
who was or is a party or is threatened to be made a party to any suit, action or
other proceeding by reason of the fact that such person is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, or other enterprise. Such indemnification may be
against expenses, including attorneys' fees, judgments, fines and other amounts
in connection with such proceeding. Indemnification is available if such person
acted in good faith and in a manner reasonably believed to be in or not opposed
to the best interests of the corporation, or, with respect to any criminal
action or proceeding, such person had no reasonable cause to believe that the
conduct was unlawful. Unless a court of competent jurisdiction otherwise orders,
indemnification is not available in connection with a proceeding by or in the
right of the corporation if the person is adjudged liable to the corporation or
derived an improper personal benefit. A corporation is required to indemnify a
director or officer who is wholly successful in the defense of any such
proceeding. Expenses (including attorneys' fees) incurred by a director,
officer, employee or agent of the corporation in defending any such proceeding
may be advanced by the corporation before the final disposition if such person
furnishes an undertaking to repay such advances if it is ultimately determined
that such person is not entitled to be indemnified. Before a corporation may
indemnify or advance expenses to a person under these provisions, the board of
directors (excluding any directors are parties to such a proceeding),
independent legal counsel appointed by the board of directors, or the
shareholders must provide authorization. A corporation may purchase insurance
against any liability of individuals for whom the corporation may provide such
indemnification. Any provisions in a corporation's articles of incorporation,
bylaws, resolutions or in a contract (except an insurance policy) for such
indemnification are valid only to the extent not inconsistent with Article 100
of the CBCA.
Section 7-108-402 of the CBCA permits a corporation, if so provided in the
articles of incorporation, to eliminate or limit the personal liability of a
director to the corporation or its shareholders for monetary damages for breach
of fiduciary duty. However, such a provision cannot eliminate or limit such
liability arising out of a breach of the director's duty of loyalty, acts or
omissions not in good faith or which involve intentional misconduct or knowing
violations of law, unlawful distributions, or any transaction for which the
director derived an improper personal benefit. Article XV of the Company's
Articles of Incorporation provides for such elimination of director liability.
The Registrant's Articles of Incorporation also provide broad indemnification to
officers, directors, employees and agents, generally paralleling those available
under the statute described above. The Registrant's Bylaws provide
indemnification to officers, directors, employees and agents, again generally
paralleling and reiterating the above referenced basis of such indemnification.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description
5 Opinion and Consent of Jones & Keller, P.C. as to
the legality of the securities being registered.
23.1 Consent of Ehrhardt Keefe Steiner & Hottman PC
23.2 Consent of Jones & Keller, P.C. (see Exhibit No. 5).
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 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 clauses
(a)(1)(i)(ii) do not apply if the information required to
be included in a post-effective amendment by those clauses
is contained in periodic reports filed by the Registrant
pursuant to Section 13 or 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; 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 1933 Act,
each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the 1934 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 1933 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 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.
<PAGE>
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 Loveland, State of Colorado, on this 14th day of
October, 1998.
FACTUAL DATA CORP.
By:/s/ Jerald H.Donnan
Jerald H. Donnan, President
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.
Signature Title Date
- ----------------------- --------------------------------- ----------------
By:/s/ Jerald H. Donnan Chairman of the Board, President
Jerald H. Donnan and Chief Executive Officer October 14, 1998
By:/s/ Todd Neiberger Chief Financial and Accounting
Todd Neiberger Officer and a Director October 26, 1998
By:/s/ James N. Donnan Vice President and a Director October 26, 1998
James N. Donnan
By:/s/ Robert J. Terry Director October 26, 1998
Robert J. Terry
By:/s/ Abdul H. Rajput Director October 26, 1998
Abdul H. Rajput
<PAGE>
INDEX TO EXHIBITS
5 Opinion and Consent of Jones & Keller, P.C. as to the
legality of the securities being registered.
23.1 Consent of Ehrhardt Keefe Steiner & Hottman PC.
23.2 Consent of Jones & Keller, P.C. (see Exhibit No. 5).
JONES & KELLER, P.C.
1625 Broadway, Suite 1600
Denver, Colorado 80202
(303) 573-1600
EXHIBIT 5
October 26, 1998
Factual Data Corp.
5200 Hahns Peak Drive
Loveland, Colorado 80538
Gentlemen:
You have requested our opinion in connection with the Registration Statement on
Form S-8 (the "Registration Statement") of Factual Data Corp. (the
"Corporation"), relating to the offer and sale of up to 31,500 shares of the
Common Stock of the Corporation (the "Common Stock") under the 1997 Stock
Incentive Plan approved by the Corporation's Board of Directors and by the
Corporation's shareholders (the "Plan"). In connection with your request, we
have made such examinations of the corporate records and proceedings of the
Corporation and considered such questions of law and taken such further action
as we deemed necessary or appropriate to enable us to render this opinion.
Based upon such examination, we are of the opinion that when the Common Stock
has been purchased and the purchase price therefor has been paid as described in
the Registration Statement, as the same may be amended, and when the Corporation
has complied with the Securities Act of 1933, as amended, and with the
securities laws of the State of Colorado and all other jurisdictions in which
Common Stock is to be sold pursuant to the exercise of stock options granted
under the Plan, the Common Stock will be legally issued, fully paid and
non-assessable.
We consent to the filing of this opinion as Exhibit 5 to the Registration
Statement. In giving this consent, however, we do not admit that we are in the
category of persons whose consent is required under Section 7 of the Securities
Act of 1933 or the Rules and Regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
JONES & KELLER, P.C.
/s/ Samuel E. Wing
EXHIBIT 23.2
CONSENT OF COUNSEL
Our consent appears in Exhibit 5 to this Registration Statement and is
incorporated herein by reference.
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement of Factual Data Corp. on Form S-8 of our report dated January 22, 1998
appearing in the Registration Statement on Form SB-2 (No. 333-47051).
/s/ Ehrhardt Keefe Steiner & Hottman PC
Denver, Colorado
October 26, 1998
