<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 30, 1999
REGISTRATION NO. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
NFRONT, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
GEORGIA 58-2242756
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
520 GUTHRIDGE COURT, N.W., SUITE 100
NORCROSS, GA 30092
(Address of Principal Executive Offices, Including Zip Code)
------------------------------
nFront, Inc. Stock Incentive Plan;
nFront, Inc. Employee Stock Purchase Plan; and
nFront, Inc. Director Stock Option Plan
(Full title of the Plans)
------------------------------
COPY TO:
BRADY L. "TRIPP" RACKLEY III WARD S. BONDURANT, ESQ.
CHAIRMAN AND CHIEF EXECUTIVE OFFICER MORRIS, MANNING & MARTIN, L.L.P.
NFRONT, INC. 1600 ATLANTA FINANCIAL CENTER
520 GUTHRIDGE COURT, N.W., SUITE 100 3343 PEACHTREE ROAD, N.E.
NORCROSS, GEORGIA 30092 ATLANTA, GEORGIA 30326
(770) 209-4460 (404) 233-7000
(Name and Address and Telephone Number, Including Area Code, of Agent for
Service.)
--------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===============================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered(4) Per Share Price Registration Fee
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock issuable under
Stock Incentive Plan 1,048,543 $ 2.06(1) $ 2,159,999 $ 600.48
- -------------------------------------------------------------------------------------------------------------------------------
Common Stock issuable under
Stock Incentive Plan 1,140,357 $11.375(2) $12,971,561 $3,606.09
- -------------------------------------------------------------------------------------------------------------------------------
Common Stock issuable under
Employee Stock Purchase Plan 100,000 $ 9.669(3) $ 966,900 $ 268.80
- -------------------------------------------------------------------------------------------------------------------------------
Common Stock issuable under
Director Stock Option Plan 200,000 $11.375(2) $ 2,275,000 $ 632.45
- -------------------------------------------------------------------------------------------------------------------------------
Total 2,488,900(4) $5,107.82
===============================================================================================================================
</TABLE>
(1) Computed in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee. Computation based on the weighted
average per share price (rounded to the nearest cent) of options granted
under the referenced plan, the shares issuable under which are registered
hereby.
(2) Computed in accordance with Rule 457(c) based on the high and low prices
on the Nasdaq National Market on September 28, 1999. Represents shares
reserved for options not yet granted.
(3) Computed in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee. The computation is based upon the price
computed in accordance with Rule 457(c), multiplied by 85%, which is the
percentage of the trading price applicable to purchases under the
referenced plan.
(4) An undetermined number of additional shares are hereby registered and may
be issued, or the shares registered hereunder may be combined into an
undetermined lesser number of shares, pursuant to the antidilution and
adjustment provisions of the Plans.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I will be
sent or given to employees and/or directors of nFront, Inc. (the "Company") as
specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the
"Securities Act"). In accordance with the instructions of Part I of Form S-8,
these documents will not be 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 of the Securities
Act. These documents and the documents incorporated by reference pursuant to
Item 3 of Part II of this Registration Statement, taken together, constitute
the prospectus as required by Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission are incorporated
herein by reference:
(a) the Company's Annual Report on Form 10-K for the fiscal year
ended June 30, 1999, filed with the Commission on September 27, 1999; and
(b) the description of the Company's common stock, no par value per
share ("Common Stock") contained in the Company's Registration Statement on
Form 8-A, filed with the Commission on June 28, 1999 (Registration No.
000-26513).
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14, or 15(d) of the Exchange Act subsequent to the date of this Registration
Statement and prior to the termination of the offering of the shares of Common
Stock offered hereby shall be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof.
The Company hereby undertakes to provide without charge to each person
to whom this Prospectus has been delivered, upon the written or oral request of
any such person, a copy of any and all of the foregoing documents incorporated
herein by reference (other than exhibits to such documents which are not
specifically incorporated by reference into the information that this
Prospectus incorporates). Written or telephone requests should be directed to
Investor Relations Department, nFront, Inc., 520 Guthridge Court, N.W. Suite
100, Norcross, GA 30092; telephone number: (770) 209-4460.
ITEM 4. DESCRIPTION OF SECURITIES.
Because the securities to be awarded pursuant to this registration
statement are registered under Section 12 of the Securities Exchange Act of
1934 this item is inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
There are no interests required to be disclosed pursuant to this Item
5.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Second Amended and Restated Articles of Incorporation
provide that the liability of the Company's directors for monetary damages
shall be eliminated to the fullest extent permissible under the Georgia
Business Corporation Code (the "GBCC") and that the Company may indemnify its
officers, employees and agents to the fullest extent permitted under the GBCC.
The Company's Second Amended and Restated Bylaws provide that the
Company must indemnify its directors against all liabilities to the fullest
extent permitted under the GBCC and that it must advance all reasonable
expenses incurred in a proceeding in which the director was either a party or a
witness because he or she was a director. The Company has entered into
indemnification agreements with its directors and certain of its officers that
provide indemnification similar to that provided in the Second Amended and
Restated Bylaws.
<PAGE> 3
The GBCC provides that, in general, a corporation may indemnify an
individual who is or was a party to any proceeding (other than action by, or in
the right of, such corporation) by reason of the fact that he or she is or was
a director of the corporation, against liability incurred in connection with
such proceeding, including any appeal thereof, provided certain standards are
met, including that such officer or 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 the corporation, and provided further that, with respect to any
criminal action or proceeding, the officer or director had no reasonable cause
to believe his or her conduct was unlawful. In the case of proceedings by or in
the right of the corporation, the GBCC provides that, in general, a company may
indemnify an individual who was or is a party to any such proceeding by reason
of the fact that he or she is or was a director of the corporation against
reasonable expenses incurred in connection with such proceeding, if it is
determined that the director has met the relevant standard of conduct. To the
extent that any directors are successful on the merits or in the defense of any
of the proceedings described above, the GBCC provides that a corporation is
required to indemnify such officers or directors against reasonable expenses
incurred in connection therewith. The GBCC further provides, in general, for
the advancement of reasonable expenses incurred by a director who is a party to
a proceeding if the director furnishes the corporation (1) a written
affirmation of his good faith belief that he or she has met the standard of
conduct under the GBCC or that the proceeding involves conduct for which
liability has been eliminated under the corporation's articles of
incorporation; and (2) a written undertaking to repay any advances if it is
ultimately determined that he or she is not entitled to indemnification. In
addition, the GBCC provides for the indemnification of officers, employees and
agents in certain circumstances.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
As no restricted securities are to be reoffered or resold pursuant to
this Registration Statement, this item is inapplicable.
ITEM 8. EXHIBITS.
The following exhibits are filed with or incorporated by reference
into this Registration Statement pursuant to Item 601 of Regulation S-K:
<TABLE>
<CAPTION>
Exhibit No. Description
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<S> <C>
3.1 The Company's Second Amended and Restated Articles
of Incorporation (incorporated by reference to
Exhibit 3.1 to the Company's Registration Statement
on Form S-1, filed with the Commission on April 23,
1999, Registration Number 333-76955).
3.2 The Company's Second Amended and Restated Bylaws
(incorporated by reference to Exhibit 3.2 to the
Company's Registration Statement on Form S-1, filed
with the Commission on April 23, 1999, Registration
Number 333-76955).
5.1 Opinion of Morris, Manning & Martin, L.L.P., as to
the legality of the securities being registered.
10.1 nFront, Inc. Stock Incentive Plan (incorporated by
reference to Exhibit 10.16 to the Company's
Registration Statement on Form S-1, filed with the
Commission on April 23, 1999, Registration Number
333-76955).
10.2 Amendment No. 1 to the nFront, Inc. Stock Incentive
Plan (incorporated by reference to Exhibit 10.17 to
the Company's Registration Statement on Form S-1,
filed with the Commission on April 23, 1999,
Registration Number 333-76955).
</TABLE>
2
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<TABLE>
<S> <C>
10.3 Amendment No. 2 to the nFront, Inc. Stock Incentive
Plan (incorporated by reference to Exhibit 10.28 to
the Company's Registration Statement on Form S-1,
filed with the Commission on April 23, 1999,
Registration Number 333-76955).
10.4 nFront, Inc. Employee Stock Purchase Plan
(incorporated by reference to Exhibit 10.29 to the
Company's Registration Statement on Form S-1, filed
with the Commission on April 23, 1999, Registration
Number 333-76955).
10.5 nFront, Inc. Director Stock Option Plan
(incorporated by reference to Exhibit 10.18 to the
Company's Registration Statement on Form S-1, filed
with the Commission on April 23, 1999, Registration
Number 333-76955).
23.1 Consent of independent auditors Ernst & Young, LLP
23.2 Consent of Morris, Manning & Martin, L.L.P.
(included in Exhibit 5.1).
</TABLE>
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 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;
(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 (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, 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 the 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 Securities Exchange Act of 1934 (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.
3
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(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 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.
4
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SIGNATURES
Pursuant to the requirements of the Securities Act, the undersigned
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 this the 30th day
of September, 1999.
nFront, Inc.
By:/s/ Brady L. "Tripp" Rackley III
-----------------------------------------
BRADY L. "TRIPP" RACKLEY III
Chairman of the Board and Chief
Executive Officer
Pursuant to the requirements of the Securities Act this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated:
<TABLE>
<S> <C> <C>
/s/ Brady L. "Tripp" Rackley III Chairman of the Board September 30, 1999
- ------------------------------------ and Chief Executive Officer
BRADY L. "TRIPP" RACKLEY III (Principal Executive Officer)
/s/ Robert L. Campbell President, Chief Operating Officer September 30, 1999
- ------------------------------------ and Director
ROBERT L. CAMPBELL
/s/ Jeffrey W. Hodges Chief Financial Officer (Principal September 30, 1999
- ------------------------------------ Financial and Accounting Officer)
JEFFREY W. HODGES
/s/ Brady L. Rackley Director September 30, 1999
- ------------------------------------
BRADY L. RACKLEY
/s/ Thomas E. Greene III Director September 30, 1999
- ------------------------------------
THOMAS E. GREENE III
/s/ Charles D. Moseley, Jr. Director September 30, 1999
- ------------------------------------
CHARLES D. MOSLEY, JR.
/s/ William H. Scott III Director September 30, 1999
- ------------------------------------
WILLIAM H. SCOTT III
/s/ James A. Verbrugee Director September 30, 1999
- ------------------------------------
JAMES A. VERBRUGEE
</TABLE>
5
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EXHIBIT INDEX
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EXHIBITS INCORPORATED HEREIN BY REFERENCE
<TABLE>
<CAPTION>
Designation of Exhibit Description of Exhibit
---------------------- ----------------------
<S> <C>
3.1 The Company's Second Amended and Restated
Articles of Incorporation (incorporated by
reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-1, filed
with the Commission on April 23, 1999,
Registration Number 333-76955).
3.2 The Company's Second Amended and Restated
Bylaws (incorporated by reference to Exhibit
3.2 to the Company's Registration Statement
on Form S-1, filed with the Commission on
April 23, 1999, Registration Number
333-76955).
10.1 nFront, Inc. Stock Incentive Plan
(incorporated by reference to Exhibit 10.16
to the Company's Registration Statement on
Form S-1, filed with the Commission on April
23, 1999, Registration Number 333-76955).
10.2 Amendment No. 1 to the nFront, Inc. Stock
Incentive Plan (incorporated by reference to
Exhibit 10.17 to the Company's Registration
Statement on Form S-1, filed with the
Commission on April 23, 1999, Registration
Number 333-76955).
10.3 Amendment No. 2 to the nFront, Inc. Stock
Incentive Plan (incorporated by reference to
Exhibit 10.28 to the Company's Registration
Statement on Form S-1, filed with the
Commission on April 23, 1999, Registration
Number 333-76955).
10.4 nFront, Inc. Employee Stock Purchase Plan
(incorporated by reference to Exhibit 10.29
to the Company's Registration Statement on
Form S-1, filed with the Commission on April
23, 1999, Registration Number 333-76955).
10.5 nFront, Inc. Director Stock Option Plan
(incorporated by reference to Exhibit 10.18
to the Company's Registration Statement on
Form S-1, filed with the Commission on April
23, 1999, Registration Number 333-76955).
EXHIBITS FILED HEREWITH
5.1 Opinion of Morris, Manning & Martin, L.L.P.,
as to the legality of the securities being
registered.
23.1 Consent of independent auditors Ernst &
Young, LLP
23.2 Consent of Morris, Manning & Martin, L.L.P.
(included in Exhibit 5.1).
</TABLE>
<PAGE> 1
EXHIBIT 5.1
[Letterhead of Morris, Manning & Martin, L.L.P.]
September 30, 1999
nFront, Inc.
520 Guthridge Court, N.W.
Suite 100
Norcross, Georgia 30092
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel for nFront, Inc., a Georgia corporation (the
"Company"), in connection with the registration under the Securities Act of
1933, as amended, pursuant to a Registration Statement on Form S-8, of a
proposed offering of 2,488,900 shares of the Company's common stock, no par
value per share (the "Shares"), including (i) 2,188,900 Shares issuable
pursuant to the nFront, Inc. Stock Incentive Plan (the "Incentive Plan"), (ii)
100,000 Shares issuable pursuant to the nFront, Inc. Employee Stock Purchase
Plan (the "Purchase Plan"), and (iii) 200,000 Shares issuable under the nFront,
Inc. Director Stock Option Plan (the "Director Plan") (together with the
Incentive Plan and the Purchase Plan, the "Plans").
We have examined and are familiar with the originals or copies
certified or otherwise identified to our satisfaction of such documents,
corporate records and other instruments relating to the incorporation of the
Company and to the authorization and issuance of Shares under the Plans as
would be necessary and advisable for purposes of rendering this opinion. Based
upon and subject to the foregoing, we are of the opinion that the Shares have
been duly authorized and, when issued as contemplated by the Plans, will be
validly issued, fully paid and non-assessable.
We hereby consent to the filing of this Opinion as Exhibit 5.1 to the
Company's registration statement on Form S-8.
Very truly yours,
/s/ Morris, Manning & Martin, L.L.P.
MORRIS, MANNING & MARTIN, L.L.P.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333- ) pertaining to the Stock Incentive Plan, Employee Stock
Purchase Plan, and Director Stock Option Plan of nFront, Inc. of our report
dated July 28, 1999, with respect to the financial statements of nFront, Inc.
included in its Annual Report on (Form 10-K) for the year ended June 30, 1999,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Atlanta, Georgia
September 30, 1999
