<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 11, 2000
Registration No. 333-__________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
--------------------
NETZEE, INC.
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(Exact Name of Registrant as specified in its Charter)
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Georgia 58-2488883
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6190 Paces Ferry Road
Suite 400, Atlanta, Georgia 30339
- ---------------------------------------- ----------
(Address of Principal Executive Offices) (Zip Code)
NETZEE, INC.
1999 STOCK OPTION AND INCENTIVE PLAN
------------------------------------
(Full Title of the Plan)
Glenn W. Sturm
Chief Executive Officer
Netzee, Inc.
6190 Paces Ferry Road, Suite 400
Atlanta, Georgia 30339
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(Name and Address of Agent for Service)
(770) 850-4000
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(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 (1) Per Share Price Registration Fee
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value....... 1,950,268 $16.96875 (2) $33,093,610(2) $8,736.71
Common Stock, no par value....... 320,000 2.00 (3) 640,000 (3) 168.96
Common Stock, no par value....... 510,000 3.11 (3) 1,586,100 (3) 418.73
Common Stock, no par value....... 1,012,000 5.00 (3) 5,060,000 (3) 1,335.84
Common Stock, no par value....... 1,024,500 14.00-15.94 (4) 14,559,295 (4) 3,843.65
- -------------------------------------------------------------------------------------------------------------------------------
Total ........................................................................................................ 14,503.90
===============================================================================================================================
</TABLE>
(1) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant to
the Netzee, Inc. 1999 Stock Option and Incentive Plan as the result of a
stock split, stock dividend or similar adjustment of the outstanding Common
Stock of Netzee, Inc., pursuant to Rule 416(a).
(2) The price is estimated in accordance with Rule 457(h) under the Securities
Act of 1933, solely for the purpose of calculating the registration fee,
and represents the average of the high and low sale prices of the Common
Stock of Netzee, Inc. on the Nasdaq National Market on February 4, 2000.
(3) This price represents the exercise price of options for the common stock of
Netzee, Inc. as required by Rule 457(h) of the Securities Act of 1933.
(4) This range represents the range of the exercise prices of options for the
Common Stock of Netzee, Inc. Calculations for purposes of the registration
fee were determined using individual exercise prices as required by Rule
457(h) of the Securities Act of 1933.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act of 1933, as amended (the "Securities Act"),
and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Netzee, Inc. (the "Company") with the
Securities and Exchange Commission (the "Commission") pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated herein by reference as of each of their respective dates:
(a) The Company's Prospectus dated November 9, 1999, filed pursuant to
Rule 424(b) (Commission File No. 333-87089).
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the
registrant document referred to in (a) above.
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A (Commission File No.
0-29725), as filed with the Commission on November 3, 1999.
All reports filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act subsequent to the date hereof and 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 hereof from the date of filing of such documents.
Any statement contained in any of such documents hereby incorporated by
reference will be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein modifies
or supersedes such statement. Any such statement so modified or superseded will
not be deemed, except as so modified or superseded, to constitute a part of
this Registration Statement.
<PAGE> 3
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Sutherland Asbill & Brennan LLP, counsel to the Company, has prepared
an opinion of counsel as to the validity of the Shares of Common Stock to be
issued under the Plan. Certain attorneys in that firm now own, or may in the
future own, shares of Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
GEORGIA BUSINESS CORPORATION CODE
Pursuant to section 14-2-851 of the Georgia Business Corporation Code
(the "GBCC"), the Company may indemnify a director (including a former director
and including a director who is or was serving at the request of the
corporation as a director, officer, partner, trustee, employee or agent of
another foreign or domestic corporation, partnership, joint venture, trust, or
employee benefit plan or other enterprise) against liability arising from
official acts if the director acted in good faith and reasonably believed that
his or her conduct was in the best interests of the corporation. For all other
acts, the corporation may indemnify a director who acted in good faith and
reasonably believed that the conduct was not opposed to the best interests of
the corporation. The corporation may indemnify a director with respect to
criminal proceedings if the director acted in good faith and had no reasonable
cause to believe the conduct was unlawful. A corporation may not indemnify a
director in connection with a proceeding by or in the right of the corporation,
except for reasonable expenses incurred in connection with the proceeding if
the director has not met GBCC standards of conduct, or in any proceeding in
which the director was adjudged liable for conduct involving receipt of an
improper personal benefit.
In addition, section 14-2-856 of the GBCC permits the articles of
incorporation, bylaws, a contract, or resolution approved by the shareholders
to authorize the corporation to indemnify a director against claims to which
the director was a party, including claims by the corporation or in the right
of the corporation (e.g., a shareholder derivative action). However, the
corporation may not indemnify the director for liability to the corporation for
any appropriation of a corporate opportunity, intentional misconduct or knowing
violation of law, unlawful distributions or receipt of an improper benefit.
Section 14-2-852 of the GBCC provides for mandatory indemnification
against reasonable expenses incurred by a director who is wholly successful in
defending an action to which the director was a party due to his or her status
as a director of the Company on the merits or otherwise. Section 14-2-854
allows a court, upon application by a director, to order indemnification and
advancement of expenses if it determines that the director is entitled to
indemnification under the GBCC or if it determines that indemnification is fair
and reasonable even if the director has failed to meet the statutory standard
of conduct under section 14-2-851, failed to comply with the requirements for
obtaining advanced expenses under section 14-2-853, or was adjudged liable as
described in section 14-2-851. However, the court may not order indemnification
in excess of reasonable expenses for liability to the corporation or for
receipt of an improper benefit.
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Section 14-2-857 of the GBCC permits a corporation to indemnify an
officer (including a former officer and including an officer who is or was
serving at the request of the corporation as a director, officer, partner,
trustee, employee or agent of another foreign or domestic corporation,
partnership, joint venture, trust , employee benefit plan or other enterprise)
to the same extent as a director. A corporation may indemnify an officer who is
not a director to a further extent by means of articles of incorporation,
bylaw, board resolution, or contract. However, the corporation may not
indemnify an officer for liability arising from conduct involving appropriation
of a corporate opportunity, intentional misconduct or knowing violation of law,
unlawful distributions, or receipt of an improper personal benefit. An officer
who is not a director is also entitled to mandatory indemnification and may
apply for court-ordered indemnification.
Section 14-2-858 of the GBCC permits a corporation to purchase and
maintain insurance on behalf of directors and officers against liability
incurred by them in their capacities or arising out of their status as
directors and officers of the corporation, regardless of whether the
corporation would have the power to indemnify or advance expenses to the
director or officer for the same liability under the GBCC.
ARTICLES OF INCORPORATION
Article VIII of the Articles of Incorporation exculpates the directors
of the Company from personal liability for money damages to the Company or its
shareholders. Currently, the directors are exculpated from all liability to the
Company or its shareholders except for liability arising from conduct involving
appropriation of a business opportunity, intentional misconduct or knowing
violation of law, unlawful distributions, or receipt of an improper personal
benefit. The Articles of Incorporation also provide that if the GBCC is amended
to allow further limitations on the personal liability of directors, the
liability of the directors will be limited or eliminated to the fullest extent
allowed by the GBCC. The Articles of Incorporation also provide that any repeal
or modification of Article VIII of the Articles of Incorporation by the
shareholders of Netzee shall not adversely affect any right or protection of a
director of Netzee existing at the time of such repeal or modification.
BYLAWS
Article VII of the Company's Amended and Restated Bylaws (the
"Bylaws") provide that the Company shall indemnify, and shall advance funds to
pay for or reimburse expense to, 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, by
reason of the fact that he is or was a director of the Company, against
expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding.
In order to be indemnified, the person must have acted in good faith and, (i)
in the case of conduct in his official capacity with the Company, having
reasonably believed his conduct to be in the best interests of the Company,
(ii) with respect to any criminal action or proceeding, having no reasonable
cause to believe his conduct was unlawful, and (iii) in all other cases, having
reasonably believed his conduct to be at least not opposed to the best
interests of the Company. With respect to advancement of expenses, the person
must provide the Company with a written affirmation of his or her good faith
belief that he or she has met the requisite standard of care and undertaking to
repay to the Company any amounts paid in advance if it shall be determined that
the person is not entitled to receive indemnification from the Company for such
amounts. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction or upon a
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plea of nolo contendere or its equivalent shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Company and, with respect to any criminal action or proceeding, that he had
reasonable cause to believe that his conduct was unlawful.
No amendment, termination, or other elimination of Article VII of the
Bylaws or of any relevant provisions of the GBCC or of any other applicable law
shall affect or diminish in any way the rights to indemnification under the
Bylaws with respect to any action, suit or proceeding arising out of, or
relating to, any event or act or omission occurring or fact or circumstance
existing prior to such amendment, termination or other elimination. The
indemnification and advancement of expenses provided by, or granted pursuant
to, the Company's Bylaws are not exclusive of any other rights permitted by
applicable law to which a person seeking indemnification or advancement of
expenses may be entitled, whether by contract or otherwise. All rights to
indemnification under Article VII of the Bylaws continue as to a person who has
ceased to be a director or officer and shall be deemed to be a contract between
the Company and each such person.
The board of directors has the power to cause the Company to
indemnify, and shall advance funds to pay for or reimburse expenses to, its (1)
officers, employees and agents and (2) any director, officer, employee or agent
of the Company who is or was serving at our request as a director, officer,
partner, trustee, employee or agent of another corporation, partnership, joint
venture, trust or other employee benefit plan or other enterprise. In order to
provide this indemnification, the board of directors must adopt a resolution
identifying the person or persons to be indemnified and specifying the
particular rights involved, which may be different for each person.
INDEMNIFICATION AGREEMENTS
The Company intends to enter into indemnification agreements with each
of its executive officers and directors that will indemnify them to the fullest
extent permitted by the GBCC.
INSURANCE
The Company's Bylaws permit the purchase and maintenance of insurance
on behalf of any person who is or was a directors, officer, employee or agent
of the Company, or who, while serving in that capacity, is also or was also
serving at the Company's request as a director, officer, partner, trustee,
employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, whether or not the Company was
required to indemnify the person by any bylaw provision or resolution of the
board of directors.
UNDERWRITING AGREEMENT
The Underwriting Agreement, dated November 8, 1999, by and among the
Company and the underwriters with respect to the Company's initial public
offering of securities, provides for indemnification by the underwriters of the
Company, its directors and its officers, and by the Company of the
underwriters, for certain liabilities, including liabilities arising under the
Securities Act, and affords certain rights of contribution with respect
thereto.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT
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<C> <S>
4.1** Articles of Incorporation, as amended to the date hereof
4.2* Amended and Restated Bylaws, as amended to the date hereof
4.3* Form of Common Stock Certificate
4.4** Form of Series A 8% Convertible Preferred Stock Certificate
4.5* 1999 Netzee Stock Option and Incentive Plan
5.1 Opinion of Sutherland Asbill & Brennan LLP regarding the legality of the
securities being offered hereby
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Sutherland Asbill & Brennan LLP is contained in Exhibit 5.1
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</TABLE>
* Previously filed as an exhibit to Netzee, Inc.'s Registration Statement on
Form S-1 (File No. 333-87089).
** Previously filed as an exhibit to Netzee, Inc.'s Form 10-Q for the period
ended September 30, 1999, as filed with the Securities and Exchange
Commission on December 22, 1999 (File No. 0-27925).
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. 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 end or high
end 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 a 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 (a)(1)(i) and (a)(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 by the registrant
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<PAGE> 7
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 treatment 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.
(b) The undersigned registrant 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 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.
(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.
* * *
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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 Atlanta, State of Georgia, on February 9, 2000.
NETZEE, INC.
By:/s/ Glenn W. Sturm
--------------------------------
Glenn W. Sturm
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Glenn W. Sturm, Richard S. Eiswirth and
C. Michael Bowers, 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 or all amendments
to this Registration Statement and to file the same with all exhibits thereto,
and other documents in connection therewith, with the 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 substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Glenn W. Sturm Chief Executive Officer and Director February 9, 2000
- ------------------------- (Principal Executive Officer)
Glenn W. Sturm
/s/ Richard S. Eiswirth Executive Vice President, Chief Financial February 9, 2000
- ------------------------- Officer and Secretary (Principal
Richard S. Eiswirth Financial and Accounting Officer)
/s/ C. Michael Bowers President and Chief Operating Officer February 9, 2000
- -------------------------
C. Michael Bowers
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C>
- ------------------------- Chairman of the Board of Directors
John W. Collins
/s/ Jon R. Burke
- ------------------------- Director February 9, 2000
Jon R. Burke
- ------------------------- Director
Gayle M. Earls
/s/ Donny R. Jackson
- ------------------------- Director February 9, 2000
Donny R. Jackson
- ------------------------- Director
Joel A. Katz
/s/ Stiles A. Kellett, Jr.
- ------------------------- Director February 9, 2000
Stiles A. Kellett, Jr.
/s/ Bruce P. Leonard
- ------------------------- Director February 9, 2000
Bruce P. Leonard
/s/ A. Jay Waite
- ------------------------- Director February 9, 2000
A. Jay Waite
</TABLE>
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EXHIBIT 5.1
[SUTHERLAND - ASBILL - BRENNAN LLP LETTERHEAD]
February 10, 2000
Netzee, Inc.
6190 Powers Ferry Road
Suite 400
Atlanta, Georgia 30339
Ladies and Gentlemen:
We are acting as your counsel in connection with the registration of
4,808,767 shares of Common Stock, no par value (the "Shares"), of Netzee, Inc.,
a Georgia corporation. The Shares are being registered with the Securities and
Exchange Commission under a Registration Statement on Form S-8 (the
"Registration Statement"). The Shares are to be offered pursuant to the Netzee,
Inc. 1999 Stock Option and Incentive Plan, as amended (the "Plan"). We are
familiar with the relevant documents and materials used in preparing the
Registration Statement and related prospectus (the "Prospectus").
Based on our review of the relevant documents and materials, it is our
opinion that when (a) the Registration Statement shall have become effective,
and (b) the Shares shall have been issued upon the terms and conditions set
forth in the Plan, the Registration Statement and the Prospectus, then the
Shares will be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
SUTHERLAND ASBILL & BRENNAN LLP
By:/s/Mark D. Kaufman
---------------------------------
Mark D. Kaufman, Partner
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation of
our reports (and to all references to our Firm) incorporated by reference in
this registration statement.
/s/ Arthur Andersen LLP
Atlanta, Georgia
February 8, 2000
