As filed with the Securities and Exchange Commission on June 3, 1999
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
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FACTUAL DATA CORP.
(Exact name of registrant as specified in its charter)
Colorado 75-1236955
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5200 Hahns Peak Drive
Loveland, Colorado 80538
(970) 663-5700
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
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1997 STOCK INCENTIVE PLAN
(Full title of the plan)
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Copies of communications to:
Samuel E. Wing, Esq.
Jones & Keller, P.C.
1625 Broadway, Suite 1600
Denver, Colorado 80202
(303) 573-1600
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed maximum Proposed maximum
Title of each class of Amount of offering price aggregate Amount of
securities to be registered be registered per share offering price Registration fee
- ---------------------------- ------------- ---------------- ----------------- -----------------
<S> <C> <C> <C> <C>
Common Stock 26,500 $5.50 $145,750 $40.52(1)
Common Stock 5,000 $6.50 $32,500 $9.04(1)
Common Stock 168,500 $10.53 $1,774,305 $493.22(2)
Total 200,000 $542.82
=======
</TABLE>
(1) Calculated in accordance with Rule 457(h) under the Securities Act of 1933,
as amended.
(2) Calculated in accordance with Rule 457(c) under the Securities Act of 1933,
as amended.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The document containing the 1997 Stock Incentive Plan required by Item 1
of Form S-8 will be sent or given to the pertinent individual(s) as specified by
Rule 428 under the Securities Act of 1933, as amended (the "Securities Act"). In
accordance with Rule 428 and the requirements of Part I of Form S-8, such
documents are not being filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as prospectuses
or prospectus supplements pursuant to Rule 424 under the Securities Act. The
Registrant shall maintain a file of such documents in accordance with the
provisions of Rule 428. Upon request, the Registrant shall furnish to the
Commission or its staff a copy or copies of all of the documents included in
such file.
<PAGE>
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document we file with the
SEC at the SEC's Public Reference Room at 450 Fifth Street, N.W., Washington,
D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the
public reference room. Our SEC filings are also available to the public at the
SEC's web site at HTTP://WWW.SEC.GOV.
The SEC allows us to "incorporate by reference" the information we file with
them, which means that we can disclose important information to you by referring
you to those documents. The information incorporated by reference is considered
to be part of this Prospectus, and information that we file later with the SEC
will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings we will made with
the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
of 1934, as amended. This Prospectus is part of a Registration Statement we
filed with the SEC. The documents we incorporate by reference are:
A. our Annual Report on Form 10-KSB for the Fiscal Year Ended December 31,
1998;
B. our Quarterly Report on Form 10-QSB for the quarter ended March 31, 1999;
C. the description of our Common Stock which is contained in Items 1 and 2 of
our Registration Statement on Form 8-A filed pursuant to Section 12 of the
Exchange Act on May 5, 1998.
D. all documents we file pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act after the date of this Prospectus and prior to the termination
of the offering of the shares offered hereby.
The Company will provide without charge to each person to whom a copy of this
Prospectus has been delivered, on the written or oral request of such person, a
copy of any or all of the documents referred to above which have been or may be
incorporated in this Prospectus by reference, other than exhibits to such
documents, and any or all other documents required to be delivered to employees
of the Company pursuant to Rule 428(b) under the Securities Act. Written
requests or requests by telephone for such copies, or additional information
about the Plan and its administrator, should be directed to Jeff Koenig, Factual
Data Corp., 5200 Hahns Peak Drive, Loveland, Colorado 80538, (970) 663-5700.
Item 4. Description of Securities.
Not applicable.
<PAGE>
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Our Bylaws requires us to indemnify, to the fullest extent authorized by
applicable law, any person who is or is threatened to be made a party to any
civil, criminal, administrative, investigative, or other action or proceeding
instituted or threatened by reason of the fact that he is or was our director or
officer or is or was serving at our request as a director of officer of another
corporation, partnership, joint venture, trust or other enterprise.
Our Articles of Incorporation provides that, to the fullest extent permitted by
Colorado law, our directors and officers shall not be liable to us or any of our
shareholders for damages caused by a breach of fiduciary duty by such director
or officers.
Sections 7-109-102 and 103 of the Colorado Business Corporation Act ("CBCA")
authorize the indemnification of directors and officers against liability
incurred by reason of being a director or officer and against expenses
(including attorney's fees) judgments, fines and amounts paid in settlement and
reasonably incurred in connection with any action seeking to establish such
liability, in the case of third-party claims, if the officer or director 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 in the case of actions by or in the
right of the corporation, if the officer or director acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interest of
the corporation and if such officer or director shall not have been adjudged
liable to the corporation, unless a court otherwise determines. Indemnification
is also authorized with respect to any criminal action or proceeding where the
officer or director also had no reasonable cause to believe his conduct was
unlawful.
We have entered into indemnification agreements with our executive officers and
directors which provide for certain defense costs and reimbursements.
The above discussion of our Articles of Incorporation, bylaws, the CBCA and the
indemnification agreements is only a summary and is qualified in its entirety by
the full text of each of the foregoing.
The Company also carries a Directors' and Officers' Liability Insurance policy
for its executive officers and directors.
Item 7. Exemption from Registration Claimed.
Not applicable.
<PAGE>
Item 8. Exhibits.
The following documents are filed as a part of this registration statement.
Exhibit
Number Description
4 Factual Data Corp. 1997 Stock Incentive Plan, as Amended.
5 Opinion of Jones & Keller, P.C. regarding legality of
securities.
23.1 Consent of Ehrhardt Keefe Steiner & Hottman PC.
23.2 Consent of Jones & Keller, P.C. (included in their opinion
filed as Exhibit 5).
24 Power of Attorney (see signature page of this Registration
Statement).
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
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;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, as amended (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; 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 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.
<PAGE>
C. Insofar as indemnification for liabilities arising under the Securities 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 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 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 of 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.
<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 May 28, 1999.
FACTUAL DATA CORP.
By: /s/Jerald H. Donnan
Jerald H. Donnan, President
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Jerald H.
Donnan and Todd A. Neiberger, jointly and severally, as attorneys-in-fact, each
with the power of substitution for him or her in any and all capacities, to sign
any amendment to this Registration Statement and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting to said attorneys-in-fact, 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 connection therewith, as fully to all intents and
purposes as he or she might or could do in person hereby ratifying and
confirming all that said attorneys-in-fact or any of them, or their or his or
her 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 below by the following persons in the capacities and
on the dates indicated.
<PAGE>
Signature Title Date
By: /s/ Jerald H. Donnan Chairman of the Board May 28, 1999
Jerald H. Donnan of Directors, President
and Chief Executive Officer
(Principal Executive
Officer)
By: /s/ Todd A. Neiberger Chief Financial Officer May 28, 1999
Todd A. Neiberger and a Director
(Principal Financial
and Accounting Officer)
By: /s/ James N. Donnan Vice President and a May 28, 1999
James N. Donnan Director
By: /s/ Robert J. Terry Director May 28, 1999
Robert J. Terry
By: /s/ Abdul H. Rajput Director May 28, 1999
Abdul H. Rajput
By: /s/ Daniel G. Helle Director May 28, 1999
Daniel G. Helle
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description
4 Factual Data Corp. 1997 Stock Incentive Plan, as Amended.
5 Opinion of Jones & Keller, P.C. regarding legality of
securities.
23.1 Consent of Ehrhardt Keefe Steiner & Hottman PC.
23.2 Consent of Jones & Keller, P.C. (included in their opinion
filed as Exhibit 5).
24 Power of Attorney (see signature page of this Registration
Statement).
FACTUAL DATA CORP.
1997 STOCK INCENTIVE PLAN, AS AMENDED
<PAGE>
1997 STOCK INCENTIVE PLAN, AS AMENDED
OF
FACTUAL DATA CORP.
ARTICLE 1: PURPOSE
This 1997 Stock Incentive Plan, as amended, (the "Plan") is adopted by the Board
of Directors of Factual Data Corp. (the "Corporation") this 1st day of February,
1998 in order that the interests of the Corporation may be advanced by enabling
the Corporation to attract persons of training, experience and ability to
continue as employees, directors and consultants of the Corporation, and to
furnish additional incentive to such persons, upon whose initiative and efforts
the successful conduct and development of the business of the Corporation
largely depends, by encouraging such persons to become owners of the common
stock of the Corporation.
ARTICLE 2: ADMINISTRATION
2.1 BOARD OF DIRECTORS: The Plan shall be administered by the Board of
Directors of the Corporation or by a committee consisting of at least two
or more non-employee directors (unless the context otherwise requires, the
Board of Directors of the Corporation or committee thereof as provided
herein shall be referred to herein as the "Board"). Acts of a majority of
the Board, at which a quorum is present, or acts approved in writing by all
of the members of the Board, shall be valid acts of the Board. The Board
shall from time to time, in its discretion, determine by resolution the
eligible persons, as defined in Article 3, who shall be granted options or
restricted stock, the amount of stock to be optioned or granted to each,
the time (within the limitations prescribed in Article 6) when such options
shall become exercisable and the conditions, if any, which must be met
prior to exercise or the restricted stock becomes unrestricted.
2.2 CONSTRUCTION: This interpretation and construction by the Board of any
provisions of the Plan, or of any option or restricted stock granted under
it, shall be final. No member of the Board shall be liable for any action
or determination made in good faith with respect to the Plan, option or
restricted stock granted under it.
2.3 INDEMNIFICATION: In addition to such other legal rights of indemnification
as they may have as members of the Board, the members of the Board shall be
indemnified by the Corporation to the full extent set forth in the
Corporation's Articles of Incorporation and Bylaws in respect of the
administration and construction of the Plan.
ARTICLE 3: ELIGIBILITY FOR PARTICIPATION
Options under the Plan may be granted to employees, directors and consultants of
the Corporation ("eligible person"). Notwithstanding the foregoing, for purposes
of the Plan, and the Plan only, no person shall be granted an option or
restricted stock award under the Plan unless such person:
<PAGE>
1. is an employee, director or consultant of by the Corporation; and
2. shall have first been presented with financial statements for the most
recent fiscal year, plus all quarterly financial reports of the Corporation
since the most recent fiscal year.
Options or restricted stock may be issued to the same person on more than
one occasion.
ARTICLE 4: STOCK SUBJECT TO THE PLAN
The stock for which options or restricted stock may be granted and which may be
sold pursuant to the Plan shall not, subject to Article 7, exceed in the
aggregate 1,000,000 shares of the Corporation's common stock. Such shares may be
authorized and unissued shares or may be issued shares reacquired by the
Corporation and referred to in the Corporation's Balance Sheet as "Treasury
Stock." All shares for which an option or restricted stock award is granted
under the Plan, which for any reason are not issued as a result of non-exercise
of such option or fulfillment of the conditions and terms of a restricted stock
award, shall be available for the granting of further options or restricted
stock awards under the Plan.
ARTICLE 5: RESTRICTED STOCK AWARDS
5.1 GRANTS OF SHARES OF RESTRICTED STOCK: An award made pursuant to this
Article 5 shall be granted in the form of shares of common stock,
restricted as provided in this Article 5 ("Restricted Stock"). Shares of
Restricted Stock shall be issued to the eligible person upon the payment of
consideration as determined by the Board. The shares of Restricted Stock
shall be issued in the name of the eligible person and shall bear a
restrictive legend prohibiting sale, transfer, pledge or hypothecation of
the shares of Restricted Stock until the expiration of the restriction
period.
The Board may also impose such other restrictions and conditions on the
shares of Restricted Stock as it deems appropriate, including but not
limited to requiring the eligible person to keep the Restricted Stock
certificates, duly endorsed, in the custody of the Corporation while the
restrictions remain in effect.
<PAGE>
5.2 RESTRICTION PERIOD: At the time a Restricted Stock award is made, the Board
may establish a restriction period applicable to such award which shall not
be more than ten (10) years. Each Restricted Stock award may have a
different restriction period, at the discretion of the Board. In addition
to or in lieu of a restriction period, the Board may establish a
performance goal which must be achieved as a condition to the retention of
the Restricted Stock. The performance goal may be based on the attainment
of specified types of performance measurement criteria, which may differ as
to various eligible persons or classes or categories of eligible persons.
Such criteria may include, without limitation, the attainment of certain
performance levels by the eligible person, the Corporation, a department or
division of the Corporation and/or a group or class of eligible persons.
Any such performance goals, together with the ranges of Restricted Stock
awards for which the eligible persons may be eligible shall be set from
time to time by the Board and shall be timely communicated in writing to
the eligible persons in advance of the commencement of the performance of
services to which such performance goals relate.
5.3 FORFEITURE OR PAYOUT OF AWARD: In the event an eligible person ceases to be
an eligible person, director or consultant during a restriction period, or
in the event performance goals attributable to a Restricted Stock award are
not achieved, subject to the terms of each particular Restricted Stock
award, a Restricted Stock award is subject to forfeiture of the shares of
common stock which had not previously been removed from restriction under
the terms of the award.
Any shares of Restricted Stock which are forfeited will be transferred to
the Corporation. Any consideration paid by the eligible person for the
Restricted Stock shall be returned, without interest, to such eligible
person upon forfeiture.
Upon completion of the restriction period and satisfaction of any
performance-goal criteria, all restrictions upon the award will expire and
new certificates representing the award will be issued or released without
the restrictive legend. As a condition precedent to receipt of the
certificates, the eligible person (or the designated beneficiary or
personal representative of the eligible person) will agree to make payment
to the Corporation in the amount of any taxes, payable by the eligible
person, which are required to be withheld with respect to such shares of
common stock.
5.4 RIGHTS AS A STOCKHOLDER: An eligible person shall have all voting,
dividend, liquidation and other rights with respect to common stock in
accordance with its terms received by him or her as a Restricted Stock
award under this section upon his or her becoming the holder of record of
such common stock; provided, however, that the eligible person's right to
sell, encumber or otherwise transfer such common stock shall be subject to
the restrictions set forth in the grant of the award and elsewhere in this
Plan.
ARTICLE 6: STOCK OPTIONS
6.1 GRANT OF OPTION: One or more options may be granted to any eligible person.
Upon the grant of an option to an eligible person, the Board shall specify
whether the option is intended to constitute a non-qualified stock option
or an incentive stock option; provided, however, that incentive stock
options may only be issued to persons who are employees of the Corporation.
An incentive stock option is an option within the meaning of Section 422 of
the Internal Revenue Code of 1986, as amended (or a successor provision
thereto).
<PAGE>
6.2 STOCK OPTION AGREEMENT: Each option granted under the Plan shall be
evidenced by a written stock option agreement between the Corporation and
the eligible person containing such terms and conditions as the Board
determines, including, without limitation, provisions to qualify Incentive
Stock Options as such under Section 422 of the Code. Such agreements shall
incorporate the provisions of this Plan by reference. The date of granting
an option is the date specified in the written stock option agreement which
is signed by the eligible person and the Corporation.
6.3 EXERCISE PRICE: The exercise price of the common stock offered to eligible
persons under the Plan by grant of an incentive stock option to purchase
common stock may not be less than the fair market value of the common stock
at the date of grant; provided, however, that the exercise price shall not
be less than 110% of the fair market value of the common stock on the date
of grant in the event an optionee owns 10% or more of the common stock of
the Corporation. The exercise price of the common stock offered to eligible
persons under the plan by grant of a non-qualified stock option may be less
than fair market value of the common stock at the date of grant.
6.4 TERM OF OPTIONS: The terms of each option shall be no more than ten years
from the date of grant as determined by the Board but shall be subject to
earlier termination as subsequently provided; however, if an incentive
stock option is granted to a person who, as of the date of grant, owns 10%
or more of the Corporation's common stock, the term of the option shall be
no more than five years.
6.5 SCHEDULE FOR EXERCISE: Immediately after grant of an option, it may be
exercised (subject to Sections 6.6 and 6.12) on terms and conditions as the
Board shall so determine on the date of grant. The Board may limit an
option by restricting its exercise in whole or in part for specified
periods in its sole discretion.
6.6 MANNER OF EXERCISE
6.6.1NOTICE TO THE CORPORATION: Each exercise of an option granted shall be
made by the delivery by the optionee (or his legal representative, as
the case may be) of written notice of such election to the
Corporation, either in person or by certified mail to the
Corporation's mailing address, stating the number of shares with
respect to which the option is being exercised and specifying a date
on which the shares will be taken and payment made therefor. Such date
shall be at least 30 days after such notice is given.
<PAGE>
6.6.2ISSUANCE OF STOCK: On the date specified in the notice of election,
the Corporation shall deliver, or cause to be delivered, to the
optionee (or his legal representative, as the case may be), stock
certificates for the number of shares with respect to which the option
is being exercised, against payment therefor. Delivery of the
certificate(s) may be made at the office of the Corporation or at the
office of a transfer agent appointed for the transfer of shares of the
Corporation, as the Corporation shall determine. Shares shall be
issued in the name of the optionee (or his legal representative, as
the case may be). No shares shall be issued until full payment
therefor shall have been made by cash or by certified check equal to
the exercise price; provided however that the Board may adopt
customary "cashless exercise" provisions if deemed appropriate. In the
event of an failure on the date stated to pay for and accept delivery
of the certificate(s) representing the full number of shares specified
in the notice of election, the option shall become inoperative only as
to those shares which are not paid for and accepted, but shall
continue with respect to any remaining shares subject to the option as
to which exercise has not yet been made.
6.7 PURCHASE OF INVESTMENT
6.7.1WRITTEN AGREEMENT BY EMPLOYEES: Unless a registration statement under
the Securities Act of 1933 is then in effect with respect to the
common stock an eligible person receives upon exercise of his or her
option, an eligible person shall acquire the common stock he or she
receives upon exercise of the option for investment and not for resale
or distribution, and he or she shall furnish the Corporation with a
written statement to that effect when exercising the option and a
reference to such investment warranty shall be inscribed on the stock
certificate(s).
6.7.2REGISTRATION REQUIREMENT: Each option shall be subject to the
requirement that, if at any time the Board determines that the
listing, registration or qualification of the common stock subject to
the option upon any securities exchange or quotation system, or under
any state or Federal law is necessary or desirable as a condition of,
or in connection with, the issuance of the common stock thereunder,
the option may not be exercised in whole or in part unless such
listing, registration or qualification shall have been effected or
obtained (and the same shall have been free of any conditions not
acceptable to the Board).
6.8 DATE OF GRANT Each option granted under the Plan, unless otherwise
specifically indicated, shall be granted as of the date of the Board's
resolution conferring the option ("date of grant").
6.9 ASSIGNMENT PROHIBITED: Any option granted under the Plan shall, by its
terms, be exercisable during the lifetime of the optionee only by the
optionee. It shall not be assigned, pledged or hypothecated in any way,
shall not be subject to execution, and shall not be transferable by the
optionee otherwise than by will or the laws of descent and distribution.
With respect to any option granted hereunder, any attempt of assignment,
transfer, pledge, hypothecation, or other disposition thereof which is
contrary to the provisions of the Plan, and the levy of any attachment or
similar proceedings thereon, shall be null and void.
6.10 TERMINATION OF OPTIONEE
<PAGE>
6.10.1 TERMINATION OTHER THAN BY DEATH OR DISABILITY: If the relationship
of an optionee as identified in his particular stock option agreement
terminates for any reason other than death or total and permanent
disability, any options granted to the optionee under the Plan which
have not been exercised shall be canceled, except that such optionee
may exercise, within three months after such termination of such
relationship, an option granted to him or her to the extent the option
was exercisable on the date of termination of such relationship. The
Plan will not confer upon any optionee any right with respect to
continuance of such relationship with the Corporation; nor will it
interfere in any way with the Corporation's right to terminate such
relationship at any time.
6.10.2 TERMINATION BY DEATH OR DISABILITY: In the event of the death of an
optionee, any option held by him at the time of his death shall be
transferred as provided in his will or as determined by the laws of
descent and distribution, and may be exercised by the estate of the
optionee, or by any person who acquired such option by bequest or
inheritance from the optionee, at any time or from time to time within
three months after the date of death, to the extent the option was
exercisable on such date. In the event that an optionee's employment
or relationship with the Company is terminated due to disability
(within the meaning of section 22(e)(3) of the Code), any option held
by him may be exercised by him or his legal representative from time
to time within 12 months after the date of termination to the extent
the option was exercisable on such date. The date of disability shall
be determined by the Board.
6.11 RIGHTS AS A STOCKHOLDER: An optionee shall not by reason of any option
granted pursuant to the Plan have any rights of a stockholder of the
Corporation until the date of issuance of the stock certificate(s) to him
in respect of exercise of an option granted hereunder.
6.12 SPECIAL LIMITATIONS ON EXERCISE OF INCENTIVE STOCK OPTIONS: The aggregate
fair market value (determined at the time the incentive stock option is
granted) of the common stock with respect to which any incentive stock
option is first exercisable during any calendar year shall not exceed
$100,000.
ARTICLE 7: CHANGES IN CAPITAL STRUCTURE
<PAGE>
7.1 STOCK DIVIDENDS AND SPLIT-UPS: If the Corporation shall, at any time prior
to the termination date of the Plan, change its issued common stock into a
greater number of shares of stock through a stock dividend or split-up of
shares, the number of shares reserved for issuance under the Plan and the
number of shares of stock deliverable with respect to each payment of the
specified option price per share in connection with each exercise of an
option after the record or effective date of such stock dividend or
split-up of shares shall be proportionately increased and the price to be
paid per share shall be decreased proportionately. Conversely, if the
issued common stock of the Corporation shall, at any time within such
period, be combined into a smaller number of shares of stock, the number of
shares reserved for issuance under the Plan and the number of shares of
stock deliverable with respect to each payment of the specified option
price per share in connection with the exercise of an option after the
record or effective date of such combination of shares shall be
proportionately reduced and the price to be paid per share shall be
increased proportionately. Notwithstanding any such proportionate increase
or decrease, no fraction of a share of stock shall be issued on the
exercise of an option.
7.2 REORGANIZATION: If within the duration of an option there shall be a
corporate merger consolidation, acquisition of assets, or other
reorganization, and if such transaction shall affect the optioned stock,
the optionee shall thereafter be entitled to receive upon exercise of his
option those shares or securities that he would have received had the
option been exercised prior to such transaction and the optionee had been a
stockholder of the Corporation with respect to such shares. If such
transaction shall affect a restricted stock award, all restrictions
relating to the award will lapse and the common stock will become
unrestricted.
7.3 LIQUIDATION: Upon the complete liquidation of the Corporation, other than
pursuant to a plan of reorganization or similar transaction of the nature
specified in paragraph 7.2, any unexercised options granted under the Plan
shall be canceled.
ARTICLE 8: GOVERNING LAW
Options and restricted stock awards granted under the Plan shall be construed
and shall take effect in accordance with the laws of the State of Colorado.
ARTICLE 9: AMENDMENT
The Board of Directors (but not a committee of the Board) may amend or
discontinue the Plan at any time provided that no unexercised option or
restricted stock award granted under the Plan may be altered or canceled, except
in accordance with its terms, without the written consent of the eligible person
to whom the option or restricted stock award has been granted.
ARTICLE 10: TAX WITHHOLDING
The Corporation shall have the right to deduct from an award pursuant to the
Plan any federal, state or local taxes as it deems to be required by law to be
withheld with respect to such award. In the case of awards paid in common stock,
the eligible person or other person receiving such common stock may be required
to pay to the Corporation the amount of any such taxes which the Corporation is
required to withhold with respect to such common stock. At the request of an
eligible person, or as required by law, such sums as may be required for the
payment of any estimated or accrued income tax liability may be withheld and
paid over to the governmental entity entitled to receive the same. The Board may
from time to time establish procedures for withholding of common stock.
<PAGE>
ARTICLE 11: TERM OF THE PLAN
No option or restricted stock award shall be granted hereunder after the
expiration of ten years from the earlier of the date on which the Plan was
adopted by the Board of Directors or the date it was approved by the
stockholders of the Corporation.
JONES & KELLER, P.C.
1625 Broadway, Suite 1600
Denver, Colorado 80202
(303) 573-1600
May 28, 1999
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 200,000 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 Plan and 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
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 10, 1999 appearing in Factual
Data Corp.'s Annual Report on Form 10-KSB for the year ended December 31, 1998.
/s/Ehrhardt Keefe Steiner & Hottman PC
Ehrhardt Keefe Steiner & Hottman PC
Denver, Colorado
June 1, 1999
