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As filed with the Securities and Exchange Commission on December 20, 2000
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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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CATUITY INC.
(Exact name of registrant as specified in its governing instrument)
DELAWARE 38-3518829
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
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2711 EAST JEFFERSON AVENUE
DETROIT, MICHIGAN 48207
(Address of Principal Executive Offices)
CATUITY INC. STOCK OPTION PLAN
CATUITY INC. 2000 DIRECTOR STOCK OPTION PLAN
EMPLOYEE OPTIONS
(Full titles of the plans)
JOHN H. LOWRY III
CHIEF FINANCIAL OFFICER
CATUITY INC.
2711 EAST JEFFERSON AVENUE
DETROIT, MICHIGAN 48207
(313) 567-4348
(Name, Address, and Telephone Number, Including Area Code, of Agent for Service)
Copy to:
DAVID D. WARNER, ESQ.
JAFFE, RAITT, HEUER & WEISS, P.C.
ONE WOODWARD AVENUE, SUITE 2400
DETROIT, MICHIGAN 48226
(313) 961-8380
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Per Aggregate Offering Registration
to be Registered Registered ------------------ ------------------ ------------
---------------- ---------- Share (1) Price (1) Fee
--------- --------- ---
<S> <C> <C> <C> <C>
Common Stock, par value $.001 per share 1,285,000 $7.125 $9,155,625 $2,640
===============================================================================================================================
(1) Computed per Rule 457.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION
The documents containing the information specified in this Item 1 will
be sent or given to employees, officers, directors or others as specified by
Rule 428(b)(1). In accordance with the rules and regulations of the Securities
and Exchange Commission (the "Commission") and the instructions to Form S-8,
such documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
The documents containing the information specified in this Item 2 will
be sent or given to employees, officers, directors or others as specified by
Rule 428(b)(1). In accordance with the rules and regulations of the Commission
and the instructions to Form S-8, such documents are not being filed with the
Commission either as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents and information heretofore filed with the
Commission are incorporated herein by reference:
(a) The Registrant's Registration Statement on Form 10-12G dated
March 21, 2000, as amended on April 7, 2000, May 15, 2000 and
August 11, 2000, all filed pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act").
(b) The Registrant's Quarterly Reports on Form 10Q dated August 21,
2000, and November 14, 2000 filed pursuant to the Exchange Act.
All documents subsequently filed with the Commission by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of 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 hereof from the date of filing of such documents.
Any statement contained in this Registration Statement or 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 subsequently filed document
which also is, or is deemed to be, incorporated by reference herein modifies or
supersedes such earlier statement. Any statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
There are no experts or counsel with interests in the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by the Delaware General Corporation Law, Registrant's
Certificate of Incorporation provides that no director will be personally liable
to Registrant or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability: (1) for any breach of the director's
duty of loyalty to Registrant or its stockholders; (2) for acts or omissions not
in good faith or that involve intentional misconduct or a knowing violation of
law; (3) under Section 174 of the Delaware General Corporation Law; and (4) for
any transaction from which the director derived an improper personal benefit.
Registrant's bylaws further provide that Registrant must indemnify its
directors and executive officers and may indemnify its other officers and
employees and agents to the fullest extent permitted by Delaware law. Registrant
currently maintains liability insurance for its officers and directors.
Registrant has entered into indemnification agreements with each of its
directors. These agreements require Registrant, among other things, to indemnify
each director for certain expenses (including attorneys' fees), judgments,
fines, penalties and settlement amounts incurred by any such person in any
threatened, pending or completed action, suit or proceeding or by reason of any
event or occurrence arising out of such person's services as a director. Under
various employment agreements, Registrant also has agreed to indemnify various
officers for any cost, loss, damage or liability (including legal fees) incurred
in connection with any action brought against the officer arising from the
performance of his duties.
There is no pending litigation or proceeding involving any of our
directors, officers, employees or agents as to which indemnification is being
sought. Registrant is not aware of any pending or threatened litigation or
proceeding that might result in a claim for such indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
The exhibits filed herewith are set forth on the Exhibit Index filed as
part of this Registration Statement.
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 this registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the
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information set forth in this registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value
securities offered would not exceed that which was registered)
and any deviation from the low 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% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table set forth in this registration statement; and
(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 (a)(1)(i) and (a)(1)(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 by
the Registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in this registration statement.
(2) That, for the purpose 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.
(b) 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 Exchange
Act of 1934 (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.
(c) 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 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.
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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
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 Detroit, State of Michigan, on December 18, 2000.
CATUITY INC., a Delaware corporation
By: /s/ Michael V. Howe
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Michael V. Howe, Chief Executive Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Michael V. Howe and John H. Lowry III,
jointly and severally, his attorneys-in-fact and agents, each with the power of
substitution and resubstitution, for him and in his name, place or stead, in any
and all capacities, to sign any amendments to this Registration Statement on
Form S-8, and to file such amendments, together with exhibits and other
documents in connection therewith, with the Securities and Exchange Commission,
granting to each attorney-in-fact and agent, 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 as he might or could do in person, and ratifying
and confirming all that the attorneys-in-fact and agents, or his substitute or
substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, the
following persons have signed this Registration Statement in the capacities and
on the date indicated.
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NAME TITLE DATE
<S> <C> <C>
/s/ David L. Mac. Smith
---------------------------------------------- Director and Chairman of the December 18, 2000
David L. Mac. Smith Board
/s/ Michael V. Howe Director, President and Chief December 18, 2000
---------------------------------------------- Executive Officer
Michael V. Howe
/s/ Alexander S. Dawson Director December 18, 2000
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Alexander S. Dawson
/s/ Duncan P.F. Mount Director December 18, 2000
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Duncan P.F. Mount
/s/ Alan L. Gilman Director December 18, 2000
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Alan L. Gilman
/s/ Robert C. Robins Director December 18, 2000
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Robert C. Robins
/s/ John H. Lowry III Vice President, Chief Financial December 18, 2000
---------------------------------------------- Officer, Treasurer and Secretary
John H. Lowry III
</TABLE>
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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4.1 Catuity Inc. Stock Option Plan*
4.2 Catuity Inc. 2000 Director Stock Option Plan
5.1 Opinion of Jaffe, Raitt, Heuer & Weiss, P.C. as to legality of
securities being registered
23.1 Consent of Ernst & Young, independent accountants
24.1 Powers of Attorney (see Signature Page)
*Incorporated by reference to Exhibit 10.24 to Catuity's Form 10-12G filed March
21, 2000.
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