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REGISTRATION NO. 333-_________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PRIVATE BUSINESS, INC.
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(Exact Name of Registrant as Specified in its Charter)
Tennessee 62-1453841
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
9010 Overlook Boulevard
Brentwood, Tennessee 37027
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(Address of Principal Executive Offices)
(Zip Code)
Private Business, Inc. 1999 Amended and Restated Stock Option Plan
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(Full Name of Plan)
Jerry L. Cover
9010 Overlook Boulevard, Brentwood, Tennessee 37027
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(Name and Address of Agent for Service)
(615) 221-8400
(Telephone number, including area code for agent for service)
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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Proposed Proposed Maximum Amount of
Title of Securities Amount to be Maximum Offering Aggregate Offering Registration
to be Registered Registered(1) Price Per Share(2) Price Fee
- ------------------- ------------- ------------------ ------------------ ------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 Par Value 4,000,000 Shares $10.00 $40,000,000 $11,120
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(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933 as
amended (the "Securities Act"), this registration statement also covers an
indeterminate number of additional shares that may become issuable pursuant to
the anti-dilution adjustment provisions of the Plan.
(2) Pursuant to Rule 457, the offering price is estimated solely for the purpose
of calculating the registration fee on the basis of the highest price per share
at which the options may be exercised.
The Index to Exhibits appears on sequentially numbered page [7.]
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed below are incorporated by reference in this
Registration Statement. In addition, all documents subsequently filed by Private
Business, Inc. (the "Company," the "Registrant" or "Private Business") pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934
(the "Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part thereof from the date
of 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 modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
(1) Amendment No. 6 to the Company's Registration Statement on
Form S-1 (File No. 333-75013), filed May 26, 1999.
(2) The description of the Company's shares of Common Stock, no
par value (the "Common Stock"), contained in Amendment No. 3
to the Registration Statement on Form S-1 (File Number
333-75013), including any amendment or report filed for the
purposes of updating such description.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The audited consolidated financial statements and schedules of the
Company incorporated by reference herein have been audited by Arthur Andersen
LLP, independent public accountants, as indicated in their reports with respect
thereto, and are included herein in reliance upon the authority of said firm in
giving said reports.
ITEM 6. INDEMNIFICATION.
Under our charter, and in accordance with Section 48-18-502 of the
Tennessee Business Corporation Act ("TBCA"), Private Business will indemnify any
person who was or is a party, or is threatened to be made a party, to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than a "derivative" action by
or in the
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right of Private Business) by reason of the fact that such person is or was a
director of Private Business, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection with such action,
suit or proceeding if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of
Private Business, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe was unlawful.
The charter provides that Private Business will pay for the
expenses incurred by an indemnified director in defending the proceedings
specified above in advance of their final disposition, provided that such person
agrees to reimburse Private Business if it is ultimately determined that such
person is not entitled to indemnification. The charter also provides that
Private Business may, in its sole discretion, indemnify any person who is or was
one of its employees and agents or any person who is or was serving at the
request of Private Business as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise to the same
degree as the foregoing indemnification of directors and officers. In addition,
Private Business may purchase and maintain insurance on behalf of any person who
is or was a director, officer, employee or agent of Private Business or another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against and incurred by such person in such capacity, or
arising out of the person's status as such whether or not Private Business would
have the power or obligation to indemnify such person against such liability
under the provisions of the TBCA. Private Business maintains insurance for the
benefit of Private Business's officers and directors insuring such persons
against various liabilities, including liabilities under the securities laws.
In addition, Private Business has entered into indemnification
agreements with its executive officers, directors and certain key employees.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS.
The Exhibits to this Registration Statement are listed in the
Index to Exhibits on Page E-1 of this Registration Statement, which Index is
incorporated herein by reference.
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ITEM 9. UNDERTAKINGS.
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. Notwithstanding the foregoing, any increase or decrease in 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 and 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 20 percent 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 (1)(i) and (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 with or furnished to the Commission by the
registrant 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.
4. 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 (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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5. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to partners, 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 Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a partner, director, officer or controlling person of the
Company in the successful defense of any action suit or proceeding) is asserted
by such partner, 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
Pursuant to the requirements of the Securities Act, the Company
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 Brentwood, State of Tennessee, on May 20, 1999.
PRIVATE BUSINESS, INC. PRIVATE BUSINESS, INC. 1999 AMENDED AND RESTATED
STOCK OPTION PLAN
By: /s/ Jerry L. Cover By: /s/ Fred P. Read
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Jerry L. Cover Fred P. Read
Chief Executive Officer Vice President and Chief Financial Officer
POWER OF ATTORNEY
Each person whose signature to the Registration statement appears below
hereby appoints Jerry L. Cover or Fred P. Read and each of them, any one of whom
may act without the joinder of the others, as his attorney-in-fact to execute in
the name and behalf of any such person, individually and in the capacity stated
below, and to file all amendments and post-effective amendments to this
Registration Statement, which amendment or amendments may make such changes and
additions in this Registration Statement as such attorney-in-fact may deem
necessary or appropriate.
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 date indicated.
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<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ William B. King Chairman of the Board May 20, 1999
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William B. King
/s/ Jerry L. Cover President and Chief Executive Officer May 20, 1999
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Jerry L. Cover
/s/ Fred P. Read Vice President, Chief Financial Officer May 20, 1999
- ----------------------------- (Principal Financial and Accounting Officer)
Fred P. Read
/s/ Thomas L. Black Director May 20, 1999
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Thomas L. Black
/s/ Gregory A. Thurman Director May 19, 1999
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Gregory A. Thurman
/s/ Brian J. Conway Director May 20, 1999
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Brian J. Conway
/s/ Bruce R. Evans Director May 20, 1999
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Bruce R. Evans
/s/ Gary W. Cage Director May 20, 1999
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Gary W. Cage
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EXHIBIT INDEX
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<CAPTION>
Exhibit No. Description of Exhibit
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<S> <C>
4.1 Amended and Restated Charter of Company (incorporated
by reference to Exhibit 3.1 to the Company's Registration
Statement No. 333-75013 on Form S-1)
4.2 Amended and Restated By-Laws of Company (incorporated
by reference to Exhibit 3.2 to the Company's Registration
Statement No. 333-75013 on Form S-1)
4.3 Private Business, Inc. 1999 Amended and Restated Stock
Option Plan (incorporated by reference to Exhibit 10.8 to
the Company's Registration Statement No. 333-75013 on
Form S-1)
5 Opinion of Harwell Howard Hyne Gabbert & Manner, P.C.
23.1 Consent of Arthur Andersen LLP, Independent Public
Accountants.
23.2 Consent of Harwell Howard Hyne Gabbert & Manner, P.C.
(contained in Exhibit 5)
24 Power of Attorney (see signature page)
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Exhibit 5
[HARWELL HOWARD HYNE GABBERT & MANNER, P.C. LOGO]
[HARWELL HOWARD HYNE GABBERT & MANNER, P.C. LETTERHEAD]
May 26, 1999
Private Business, Inc.
9010 Overlook Boulevard
Brentwood, Tennessee 37027
Ladies and Gentlemen:
We have acted as special counsel to Private Business, Inc. (the
"Company") in connection with the registration of the Company's 1999 Amended and
Restated Stock Option Plan pursuant to a registration statement on Form S-8, as
filed with the Securities and Exchange Commission (the "Registration
Statement"). This firm hereby consents to the filing of this opinion as an
exhibit to the Registration Statement and with agencies of such states and other
jurisdictions as may be necessary in the course of complying with the laws of
such states and jurisdictions regarding the offering and sale of the stock in
accordance with the Registration Statement.
We have examined originals, or certified or photostatic copies of such
statutes, records, regulations, certificates of the officers of the Company and
of public officials, and such other information as we have deemed necessary for
purposes of rendering this opinion.
In stating our opinion, we have assumed: (i) that all signatures are
genuine, all documents submitted to us as originals are authentic, and all
documents submitted to us as copies conform to authentic original documents; and
(ii) that the parties to such documents have the legal right and power under all
applicable laws, regulations and agreements to enter into, execute, deliver and
perform their respective obligations thereunder.
On the basis of such review, but subject to the limitations expressed
herein, we are of the opinion, as of the date hereof, that the securities being
registered by the Registration Statement will, when sold as contemplated under
the Registration Statement, be legally issued, fully paid and non-assessable.
Our opinion herein is limited solely to the laws of the United States
of America and the corporate law of the State of Tennessee. In rendering the
opinion set forth herein, we have relied upon the documents referenced above and
have made no independent verification or investigation of factual matters
pertaining thereto or to the Company. The opinion expressed herein is subject to
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance and other similar laws now or hereafter in effect relating to or
affecting the rights of creditors generally, judicial discretion, and equitable
principles whether applied pursuant to a proceeding at law or in equity; and no
opinion is expressed with respect to the availability of equitable remedies.
Very truly yours,
HARWELL HOWARD HYNE
GABBERT & MANNER, P.C.
/s/ Harwell Howard Hyne
Gabbert & Manner, P.C.
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1800 FIRST AMERICAN CENTER 315 DEADERICK STREET NASHVILLE, TENNESSEE 37238-1800
615-256-0500 FAX 615-251-1059
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Exhibit 23.1
ARTHUR
ANDERSEN
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated March 17, 1999,
except for Note 15, as to which the date is May 14, 1999, included in or made a
part of Amendment No. 6 to the Private Business, Inc. registration statement
(File No. 333-75013), and to all references made to our Firm.
/s/ Arthur Andersen LLP
Nashville, Tennessee
May 25, 1999
