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As filed with the Securities and Exchange Commission on June 25, 1999
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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@PLAN.INC
(Exact name of Registrant as Specified in its Charter)
TENNESSEE 62-1643381
- -------------------------------------- ---------------------------------------
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
THREE LANDMARK SQUARE, SUITE 400
STAMFORD, CONNECTICUT 06901
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(Address of Principal Executive Offices)
@PLAN.INC SECOND AMENDED AND RESTATED 1996 STOCK OPTION PLAN
@PLAN.INC 1999 STOCK INCENTIVE PLAN
-----------------------------------
(Full Title of the Plans)
MARK K. WRIGHT
THREE LANDMARK SQUARE, SUITE 400
STAMFORD, CONNECTICUT 06901
--------------------------------
(Name and Address of Agent for Service)
(203) 961-0340
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(Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE REGISTERED AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
REGISTERED (1) SHARE PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
1996 STOCK OPTION PLAN
Common Stock, no par value 1,783,140 shares $ 1.60(2) $ 2,853,024 $ 794
Common Stock, no par value 196,860 shares $14.375(3) $ 2,829,863 $ 787
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1999 STOCK INCENTIVE PLAN
Common Stock, no par value 149,000 shares $ 14.00(2) $ 2,086,000 $ 580
Common Stock, no par value 651,000 shares $14.375(3) $ 9,358,125 $ 2,602
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under either of the Plans being
registered pursuant to this Registration Statement by reason of any stock
dividend, stock split, recapitalization or any other similar transaction
effected without the receipt of consideration which results in an increase
in the number of the Registrant's outstanding shares of Common Stock.
(2) The offering price is estimated solely for the purpose of calculating the
amount of the registration fee in accordance with Rule 457(h) under the
Securities Act. The computation is based on the weighted average per share
exercise price (rounded to the nearest cent) of outstanding options under
the referenced plan, the shares issuable under which are registered
hereby.
(3) The offering price is estimated solely for the purpose of calculating the
amount of the registration fee in accordance with Rule 457(h) under the
Securities Act. The computation with respect to unissued options is based
on the average of the high and low prices of the Registrant's Common Stock
as reported on The Nasdaq National Market on June 21, 1999.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by the Registrant with the
Securities and Exchange Commission are hereby incorporated by reference:
(a) The Registrant's Prospectus, dated May 20, 1999, filed with the
Commission pursuant to Rule 424(b) under the Securities Act of
1933, as amended, which contains audited financial statements for
the Registrant's latest fiscal year for which such statements
have been filed.
(b) Not applicable.
(c) The description of the Registrant's Common Stock contained in the
Registration Statement on Form 8-A, dated March 17, 1999,
including all amendments and reports filed for the purpose of
updating such description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c),
14, and 15(d) of the Securities Exchange Act of 1934, as amended, after the date
hereof and prior to the filing of a post-effective amendment to this
Registration Statement 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 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.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Registrant's charter provides that, to the fullest extent permitted by
the Tennessee Business Corporation Act, a director will not be liable to the
Registrant or its shareholders for monetary damages for breach of his or her
fiduciary duty as a director. Under the TBCA, directors have a fiduciary duty
which is not eliminated by this provision in the Registrant's charter. In some
circumstances, equitable remedies such as injunctive or other forms of
nonmonetary relief will remain available. In addition, each director will
continue to be subject to liability under the TBCA for:
- breach of the director's duty of loyalty;
- acts or omissions which are found by a court of competent jurisdiction
to be not in good faith or knowing violations of law;
- actions leading to improper personal benefit to the director; and
- payment of dividends that are prohibited by the TBCA.
The Registrant's charter provision does not affect the directors'
responsibilities under any other laws, such as the Federal securities laws or
state or Federal environmental laws.
The TBCA provides that a corporation may indemnify any director or officer
against liability incurred in connection with a proceeding if the director or
officer acted in good faith or reasonably believed, in the case of
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conduct in his or her official capacity with the corporation, that the conduct
was in the corporation's best interest. In all other civil cases, a corporation
must indemnify a director or officer who reasonably believed that his or her
conduct was not opposed to the best interest of the corporation. In connection
with any criminal proceedings, a corporation may indemnify any director or
officer who had no reasonable cause to believe that his or her conduct was
unlawful.
In actions brought by or in the right of the corporation, however, the
TBCA does not allow indemnification if the director or officer is adjudged to be
liable to the corporation. Similarly, the TBCA prohibits indemnification of a
director or officer if the director or officer is adjudged liable in a
proceeding because a personal benefit was improperly received.
In cases when the director or officer is wholly successful, on the merits
or otherwise, in the defense of any proceeding brought because of his or her
status as a director or officer of a corporation, the corporation must indemnify
the director or officer against reasonable expenses incurred in the proceeding.
Also, the TBCA provides that a court may order a corporation to indemnify a
director or officer for reasonable expense if, in consideration of all relevant
circumstances, the court determines that the individual is fairly and reasonably
entitled to indemnification, whether or not the individual acted in good faith
or reasonably believed his or her conduct was in the corporation's best
interest.
The Registrant's bylaws provide that it shall indemnify and advance
expenses to its directors and officers to the fullest extent permitted by the
TBCA. The Registrant also intends to maintain insurance to protect any director
or officer against any liability and to enter into indemnification agreements to
create a contractual obligation to indemnify its directors and officers. These
agreements, among other things, indemnify the Registrant's directors and
officers for some expenses, judgments and fines and amounts paid in settlement,
actually and reasonably incurred by any of these persons in any action, suit or
proceeding arising out of the person's services as the Registrant's director or
officer.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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Exhibit Number Description
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4.1 Form of certificate representing the common stock, no par
value per share of @plan.inc - Incorporated by reference
to Registration Statement on Form S-1 (File No. 333-74507).
4.2 Article 7 of the Third Amended and Restated Charter -
Incorporated by reference to Registration Statement on Form
S-1 (File No. 333-74507).
4.3 Article II of the Second Amended and Restated Bylaws -
Incorporated by reference to Registration Statement on Form
S-1 (File No. 333-74507).
5 Opinion of Bass, Berry & Sims PLC
23.1 Consent of Bass, Berry & Sims PLC (included in Exhibit 5)
23.2 Consent of Arthur Andersen LLP
24 Power of Attorney (included on Page II-4)
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Item 9. Undertakings.
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 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 purposes of determining any liability under the Securities
Act of 1933, 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.
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 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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 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 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 Act and will be governed by the final adjudication of
such issue.
[SIGNATURE PAGE FOLLOWS]
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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 Stamford, State of Connecticut, on this 25th day of
June, 1999.
@plan.inc
By: /s/ Mark K. Wright
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Mark K. Wright
Chairman and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, each person whose signature appears
below hereby constitutes and appoints Mark K. Wright and Nancy A. Lazaros, and
each of them, his true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for him and in his 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 all documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents 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 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 their 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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Signature Title Date
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<S> <C> <C>
/s/ Mark K. Wright Chairman and Chief Executive June 25, 1999
- ----------------------------- Officer (Principal Executive
Mark K. Wright Officer)
/s/ Nancy A. Lazaros Senior Vice President, Chief June 25, 1999
- ----------------------------- Financial Officer and Secretary
Nancy A. Lazaros (Principal Financial and
Accounting Officer)
/s/ Gary R. Haynes Director June 25, 1999
- -----------------------------
Gary R. Haynes
/s/ Donald M. Johnston Director June 25, 1999
- -----------------------------
Donald M. Johnston
/s/ W. Patrick Ortale, III Director June 25, 1999
- -----------------------------
W. Patrick Ortale, III
/s/ Roger J. Thomson Director June 25, 1999
- -----------------------------
Roger J. Thomson
/s/ John H. Wyant Director June 25, 1999
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John H. Wyant
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EXHIBIT INDEX
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<CAPTION>
Exhibit Number Description
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<S> <C>
4.1 Form of certificate representing the common stock, no par
value per share of @plan.inc - Incorporated by reference to
Registration Statement on Form S-1 (File No. 333-74507).
4.2 Article 7 of the Third Amended and Restated Charter -
Incorporated by reference to Registration Statement on Form
S-1 (File No. 333-74507).
4.3 Article II of the Second Amended and Restated Bylaws -
Incorporated by reference to Registration Statement on Form
S-1 (File No. 333-74507).
5 Opinion of Bass, Berry & Sims PLC
23.1 Consent of Bass, Berry & Sims PLC (included in Exhibit 5)
23.2 Consent of Arthur Andersen LLP
24 Power of Attorney (included on Page II-4)
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Exhibit 5
[BASS, BERRY & SIMS PLC LETTERHEAD]
June 25, 1999
@plan.inc
Three Landmark Square, Suite 400
Stamford, Connecticut 06901
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as your counsel in the preparation of the Registration
Statement on Form S-8 (the "Registration Statement") relating to the
Company's Second Amended and Restated 1996 Stock Option Plan and 1999 Stock
Incentive Plan (the "Plans") filed by you with the Securities and Exchange
Commission relating to an aggregate of 2,780,000 shares (the "Shares") of
common stock, no par value per share, issuable pursuant to the Plans.
In so acting we have examined and relied upon such records, documents and
other instruments as in our judgment are necessary or appropriate in order to
express the opinions hereinafter set forth and have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us as originals,
and the conformity to original documents of all documents submitted to us as
certified or photostatic copies.
Based on the foregoing, we are of the opinion that the Shares, when issued
pursuant to and in accordance with the Plans, will be validly issued, fully
paid and nonassessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Bass, Berry & Sims PLC
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EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To @plan.inc:
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated March 11, 1999
included in @plan.inc's Registration Statement File No. 333-74507 for the year
ended December 31, 1998 and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
New York, New York
June 22, 1999
