AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 23, 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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TANNING TECHNOLOGY CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 84-1381662
(State or other (I.R.S. Employer
jurisdiction of Identification Number)
incorporation or
organization)
4600 SOUTH ULSTER ST.
SUITE 380
DENVER, COLORADO 80237
(Address of registrant's
principal executive offices)
TANNING TECHNOLOGY CORPORATION 1999 EMPLOYEE STOCK PURCHASE PLAN
TANNING TECHNOLOGY CORPORATION 1999 STOCK OPTION PLAN
(Full title of the plans)
HENRY F. SKELSEY
CHIEF FINANCIAL OFFICER
TANNING TECHNOLOGY CORPORATION
4600 SOUTH ULSTER ST., SUITE 380
DENVER, COLORADO 80237
(303) 220-9944
(Name, address, and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF SECURITIES AMOUNT TO MAXIMUM MAXIMUM AMOUNT OF
TO BE REGISTERED BE OFFERING AGGREGATE REGISTRATION
REGISTERED PRICE PER OFFERING FEE
(1) SHARE (2) PRICE (2)
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Common Stock, par 1,000,000 $14.00 $14,000,000 $3,892.00
value $.01 per share shares
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Common Stock, par 5,000,000 $14.00 $70,000,000 $19,460.00
value $.01 per share shares
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Total Registration fee $23,352.00
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(1) Plus such additional number of shares as may be required in the event
of a stock dividend, stock split, recapitalization or other similar
event in accordance with Rule 416 of the Securities Act of 1933, as
amended (the "Securities Act").
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(h) of the Securities Act of 1933.
<PAGE>
PART I
EXPLANATORY NOTE
This Form S-8 Registration Statement relates to
(a) 1,000,000 shares of common stock of Tanning Technology
Corporation, par value $.01 per share (the "Common Stock"), which
may be issued under our 1999 Employee Stock Purchase Plan (the
"ESPP"), and
(b) 5,000,000 shares of Common Stock which may be issued upon the
exercise of options granted under our 1999 Stock Option Plan (the
"Stock Plan").
The documents containing information specified by Part I of this
Registration Statement have been or will be sent or given to participants
in the ESPP and the Stock Plan as specified in Rule 428(b)(1) promulgated
by the Securities and Exchange Commission under the Securities Act. Such
document(s) are not required to be filed with the SEC but constitute (along
with the documents incorporated by reference into this Registration
Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
References to "the Company" shall mean Tanning Technology Corporation,
a Delaware corporation.
PART II
INFORMATION REQUIRED IN THE 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
at the SEC's public reference rooms in Washington, D.C., New York, NY and
Chicago, IL. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms. Our SEC filings are also available to the
public from the SEC's web site at http://www.sec.gov. Reports, proxy and
information statements and other information concerning us can also be
inspected at the offices of the Nasdaq Stock Market's National Market, 33
Whitehall Street, New York, NY 10004.
The SEC allows us to "incorporate by reference" information into this
Registration Statement, which means that we can disclose important
information to you by referring you to another document filed separately
with the SEC. The information incorporated by reference is considered to be
part of this Registration Statement, and later information that we file
with the SEC will automatically update this Registration Statement. We
incorporate by reference the following documents listed below and any
future filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934, as amended, prior to the
termination of the offering:
(a) Our prospectus filed with the SEC on July 23, 1999 pursuant to
Rule 424(b) of the Securities Act in connection with the Form
S-1, which includes our audited financial statements for the
fiscal year ended December 31, 1998; and
(b) Our Registration Statement on Form 8-A filed with the SEC on July
22, 1999, which describes the terms of the Common Stock.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Fried, Frank, Harris Shriver & Jacobson (a partnership including
professional corporations), New York, New York will pass upon the validity
of the issuance of the shares of Common Stock. Frederick Fogel will join us
as Vice President--Business Affairs and General Counsel upon the completion
of the initial public offering of the Common Stock. Mr. Fogel is and will
continue to serve as a partner at Fried, Frank, Harris, Shriver & Jacobson.
Mr. Fogel has been granted options to purchase 278,281 shares of our common
stock, 61,386 of which will vest upon the commencement of his employment
with us.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law (the "DGCL")
provides that a corporation may indemnify directors and officers as well as
other employees and individuals against expenses (including attorneys'
fees), judgments, fines, and amounts paid in settlement in connection with
specified actions, suits and proceedings, whether civil, criminal,
administrative, or investigative (other than action by or in the right of
the corporation--a "derivative action"), if they acted in good faith and in
a manner they reasonably believed to be in or not opposed to the best
interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe their conduct was unlawful.
A similar standard is applicable in the case of derivative actions, except
that indemnification only extends to expenses (including attorneys' fees)
incurred in connection with the defense or settlement of such action, and
the statute requires court approval before there can be any indemnification
where the person seeking indemnification has been found liable to the
corporation. The statute provides that it is not exclusive of other
indemnification that may be granted by a corporation's certificate of
incorporation, bylaws, disinterested director vote, stockholder vote,
agreement, or otherwise.
Our bylaws and our certificate of incorporation require us to
indemnify to the fullest extent authorized by the DGCL any person made or
threatened to be made a party to an action, suit or proceeding, whether
criminal, civil, administrative or investigative, by reason of the fact
that he or she or a person of whom he or she is the legal representative is
or was a director or officer of the Company or is or was serving at the
request of the Company as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans maintained or
sponsored by us. We will also be able to grant indemnification to our other
employees or agents. The amended and restated certificate of incorporation
and bylaws will also require us to advance expenses, as incurred, to its
directors, officers and other agents and employees in connection with a
legal proceeding, to the fullest extent permitted by the DGCL, subject to
certain limited exceptions. The amended and restated certificate of
incorporation and bylaws will also permit us to enter into indemnification
agreements with its directors and officers and to obtain director and
officer liability insurance.
As permitted by Section 102(b)(7) of the DGCL, our certificate of
incorporation eliminates the liability of a director to the corporation or
its stockholders for monetary damages for such breach of fiduciary duty as
a director, except for liabilities arising (a) from any breach of the
director's duty of loyalty to the corporation or its stockholders; (b) from
acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law; (c) under Section 174 of the DGCL; or (d)
from any transaction from which the director derived an improper personal
benefit.
We have entered into indemnification agreements with our directors and
officers. These agreements provide that we will indemnify such directors
and officers for any amounts paid in settlement or incurred by, or assessed
against, such directors and officers arising in connection with the service
of such directors and officers to the fullest extent permitted by Delaware
law.
We have obtained primary and excess insurance policies insuring our
directors and officers and those of our subsidiaries against certain
liabilities they may incur in their capacity as directors and officers.
Under these policies, the insurer, on our behalf, may also pay amounts for
which we have granted indemnification to the directors or officers.
Additionally, Mr. Mahan, as an employee of AEA Investors Inc., and Mr.
Skelsey, as a consultant to AEA Investors Inc., are covered by an excess
coverage insurance policy maintained by AEA Investors Inc. against certain
liabilities they may incur in their capacity as directors of the Company in
excess of the coverage provided by our director and officer insurance
policies.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
EXHIBIT NO. DESCRIPTION OF EXHIBIT
- ----------- ----------------------
4.1 Form of Amended and Restated Certificate of
Incorporation of the Company previously filed as
Exhibit 3.1 to the Company's Registration
Statement No. 333-78657 on Form S-1, and
incorporated herein by reference
4.2 Form of Amended and Restated By-Laws of the
Company previously filed as Exhibit 3.2 to the
Company's Registration Statement No. 333-78657 on
Form S-1, and incorporated herein by reference
4.3 Form of Tanning Technology Corporation 1999
Employee Stock Purchase Plan previously filed as
exhibit 10.32 to the Company's Registration
Statement No. 333-78657 on Form S-1, and
incorporated herein by reference
4.6 Form of Tanning Technology Corporation 1999 Stock
Option Plan previously filed as exhibit 10.33 to
the Company's Registration Statement No.
333-78657 on Form S-1, and incorporated herein by
reference
5.1* Opinion of Fried, Frank, Harris, Shriver &
Jacobson
23.1 Consent of Fried, Frank, Harris, Shriver &
Jacobson (included in Exhibit 5.1)
23.2* Consent of Ernst & Young LLP (independent public
accountants)
- ----------------------
* Filed herewith.
<PAGE>
Item 9. Undertakings
The Company hereby undertakes:
(a) 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 this 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 this Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information
in this Registration Statement;
provided, however, that paragraphs (i) and (ii) do not apply if 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 Company pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference
in this Registration Statement.
(b) 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.
(c) 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.
(d) That, for the purpose 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 that is
incorporated by reference in this 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 may be permitted to directors, officers and controlling
persons of the Company pursuant to the provisions described in Item 6 of
this Registration Statement, or otherwise, the Company 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 Company of expenses incurred or
paid by a director, officer or controlling person of the Company 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 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 New York, State of New York, on
July 22, 1999.
Tanning Technology Corporation
/s/ Henry F. Skelsey
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By: Henry F. Skelsey
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Tanning Technology
Corporation, a Delaware corporation, do hereby constitute and appoint Henry
F. Skelsey and Frederick H. Fogel, and each of them, the lawful
attorneys-in-fact and agents with full power and authority to do any and
all acts and things and to execute any and all instruments which said
attorneys and agents, and any one of them, determine may be necessary or
advisable or required to enable said corporation to comply with the
Securities Act and any rules or regulations or requirements of the
Commission in connection with this Registration Statement. Without limiting
the generality of the foregoing power and authority, the powers granted
include the power and authority to sign the names of the undersigned
officers and directors in the capacities indicated below to this
Registration Statement, to any and all amendments, both pre-effective and
post-effective, and supplements to this Registration Statement, and to any
and all instruments or documents filed as part of or in conjunction with
this Registration Statement or amendments or supplements thereof, and each
of the undersigned hereby ratifies and confirms that all said attorneys and
agents, or any one of them, shall do or cause to be done by virtue hereof.
This Power of Attorney may be signed in several counterparts.
<PAGE>
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities
and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Larry G. Tanning Chairman, Chief Executive July 22, 1999
- --------------------- Officer and President
Larry G. Tanning
/s/ Bipin Agarwal Director and Senior Vice July 22, 1999
- --------------------- Present of Consulting
Bipin Agarwal Operations--North America
/s/ Henry F. Skelsey Director, Executive Vice July 22, 1999
- --------------------- President and Chief
Henry F. Skelsey Financial Officer
/s/ Toni S. Hippeli Director July 22, 1999
- ---------------------
Toni S. Hippeli
/s/ Christopher Mahan Director July 22, 1999
- ---------------------
Christopher Mahan
/s/ Joseph Roebuck Director July 22, 1999
- ---------------------
Joseph Roebuck
Director
- ---------------------
Michael E. Shanahan
<PAGE>
Index to Exhibits
EXHIBIT NO. DESCRIPTION OF EXHIBIT
- ----------- ----------------------
4.1 Form of Amended and Restated Certificate of
Incorporation of the Company previously filed as
Exhibit 3.1 to the Company's Registration
Statement No. 333-78657 on Form S-1, and
incorporated herein by reference
4.2 Form of Amended and Restated By-Laws of the
Company previously filed as Exhibit 3.2 to the
Company's Registration Statement No. 333-78657 on
Form S-1, and incorporated herein by reference
4.3 Form of Tanning Technology Corporation 1999
Employee Stock Purchase Plan previously filed as
exhibit 10.32 to the Company's Registration
Statement No. 333-78657 on Form S-1, and
incorporated herein by reference
4.6 Form of Tanning Technology Corporation 1999 Stock
Option Plan previously filed as exhibit 10.33 to
the Company's Registration Statement No.
333-78657 on Form S-1, and incorporated herein by
reference
5.1* Opinion of Fried, Frank, Harris, Shriver &
Jacobson
23.1 Consent of Fried, Frank, Harris, Shriver &
Jacobson (included in Exhibit 5.1)
23.2* Consent of Ernst & Young LLP (independent public
accountants)
- ------------------------
* Filed herewith.
EXHIBIT 5.1
[LETTERHEAD OF FRIED, FRANK, HARRIS, SHRIVER & JACOBSON]
212-859-8280
July 22, 1999 (FAX: 212-859-8586)
Tanning Technology Corporation
4600 South Ulster Street, Suite 380
Denver, Colorado 80237
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We are acting as special counsel to the Tanning Technology
Corporation, a Delaware corporation (the "Company"), in connection with the
registration, pursuant to a Registration Statement on Form S-8 (the
"Registration Statement"), of an aggregate of 6,000,000 shares (the
"Shares") of common stock, par value $.01 per share, of the Company,
issuable pursuant to (i) the Company's 1999 Employee Stock Purchase Plan
(the "ESPP") (1,000,000 Shares) and (ii) the Company's 1999 Stock Option
Plan (the "Stock Plan") (5,000,000 Shares).
We have examined the originals, or certified, conformed or
reproduction copies, of all records, agreements, instruments and documents
as we have deemed relevant or necessary as the basis for the opinion
hereinafter expressed. In all such examinations, we have assumed the
genuineness of all signatures and the conformity to original or certified
copies of all copies submitted to us as conformed or reproduction copies.
As to various questions of fact relevant to such opinion, we have relied
upon certificates and statements of public officials, officers or
representatives of the Company and others.
Based upon the foregoing, and subject to the limitations set
forth herein, we are of the opinion that the Shares, when issued and paid
for (with the consideration received by the Company being not less than the
par value thereof) in accordance with the ESPP and the Stock Plan, will be
validly issued, fully paid and non-assessable.
The opinion expressed herein is limited to the General
Corporation Law of the State of Delaware, as currently in effect (including
judicial decisions interpreting the statute).
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement on Form S-8 relating to the registration of the
Shares. In giving this consent, 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, as amended.
Frederick H. Fogel, a partner in our law firm, has been appointed
Vice President of Business Affairs and General Counsel of the Company.
Very truly yours,
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
By: /s/ Kenneth R. Blackman
-------------------------------------
Kenneth R. Blackman
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
Form S-8 pertaining to the Tanning Technology Corporation 1999 Employee
Stock Purchase Plan and the Tanning Technology Corporation 1999 Stock
Option plan of our report dated February 26, 1999, except for Note 4, as to
which the date is May 17, 1999, with respect to the consolidated financial
statements and schedule of Tanning Technology Corporation included in its
Registration Statement Form S-1 No. 333-78657 for the year ended December
31, 1998, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Denver, Colorado
July 22, 1999
