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As filed with the Securities and Exchange Commission on April 19, 2000
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CEREUS TECHNOLOGY PARTNERS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-3773537
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1000 Abernathy Road
Suite 1000
Atlanta, Georgia 30328
(Address, including zip code, of principal executive offices)
CEREUS TECHNOLOGY PARTNERS, INC. 1997 STOCK OPTION PLAN
(Full title of the plan)
Mr. Steven A. Odom Robert C. Hussle, Esq.
Cereus Technology Partners, Inc. Rogers & Hardin LLP
1000 Abernathy Road 2700 International Tower
Suite 1000 229 Peachtree Street, N.E.
Atlanta, Georgia 30328 Atlanta, Georgia 30303
(770) 668-0900 (404) 522-4700
(Names, addresses, including zip codes, and telephone numbers, including area
codes, of agents for service)
CALCULATION OF REGISTRATION FEE
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==================================================================================================================================
Proposed Maximum
Title of Securities to be Amount to be Proposed Maximum Aggregate Offering Amount of
Registered Registered(2) Offering Price Per Share Price Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, par value $.01 per
share (1) 3,000,000 $13.25 (3) $39,750,000 $10,494.00
==================================================================================================================================
</TABLE>
(1) Issuable pursuant to Cereus Technology Partners, Inc. 1997 Stock Option
Plan, as amended (the "Plan").
(2) This registration statement also relates to an indeterminate number of
additional shares of Common Stock that may become issuable pursuant to
anti-dilution and adjustment provisions of the Plan. In addition,
pursuant to Rule 416(c) under the Securities Act of 1933, as amended,
this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the Plan.
(3) Pursuant to Rule 457(c) and (h) under the Securities Act of 1933, as
amended, and solely for the purpose of calculating the applicable
registration fee, the proposed maximum offering price per share has
been estimated at $13.25, which amount represents the average of the
bid and asked prices of the Company's common stock on the OTC Bulletin
Board on April 17, 2000.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents previously filed with the Securities and
Exchange Commission (the "Commission") by the Registrant or the Plan are
incorporated by reference in this Registration Statement:
(i) The Registrant's Annual Report on Form 10-KSB for the year
ended December 31, 1999 (File Number, 000-30522);
(ii) The Registrant's Current Report on Form 8-K filed on January
19, 2000;
(iii) The Registrant's Amended Current Report on Form 8-K/A filed
on January 31, 2000;
(iv) The Registrant's Current Report on Form 8-K filed on February
17, 2000; and
(v) The Registrant's Registration Statement on Form 8-A filed on
January 19, 2000.
All documents subsequently filed by the Registrant or the Plan pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all the shares of
Common Stock offered hereby have been sold or which deregisters all of such
shares 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 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 modifies or supersedes such statement. Any such 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.
Not applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Section 102 of the Delaware General Corporation Law ("DGCL") allows a
corporation to eliminate or limit the personal liability of directors of a
corporation to the corporation or to any of its stockholders for monetary
damages for a breach of fiduciary duty as a director, except (i) for breach of
the director's duty of loyalty, (ii) for acts of omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
certain unlawful dividends and stock repurchases, or (iv) for any transaction
from which the director derived an improper personal benefit.
Section 145 of the DGCL provides that, to the extent a director,
officer, employee or agent of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding, whether civil, criminal,
administrative or investigative or in defense of any claim, issue, or matter
therein (hereinafter a "Proceeding"), by reason of the fact that he is or was a
director, officer, employee or agent of a corporation or is or was serving at
the request of such corporation as a director, officer, employee or agent of
another corporation or of a partnership, joint venture, trust or other
enterprise (collectively an "Agent" of the corporation), he shall be indemnified
against expenses (including attorney's fees) actually and reasonably incurred by
him in connection therewith.
Section 145 also provides that a corporation may indemnify any person
who was or is a party or is threatened to be made a party to any threatened
Proceeding by reason of the fact that he is or was an Agent of the corporation,
against expenses (including attorney's fees), judgment, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interest of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful; provided, however, that in
an action by or in the right of the corporation, the corporation may not
indemnify such person in respect of any claim, issue, or matter as to which he
is adjudged to be liable to the corporation unless, and only to the extent that,
the Court of Chancery or the court in which such proceeding was brought
determined that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is reasonably entitled in indemnity.
Article Eleventh of the Certificate of Incorporation of the Registrant
provides that no director shall be personally liable to the corporation or any
of its stockholders for monetary damages for breach of fiduciary duty as a
director, except with respect to (1) a breach of the director's duty of loyalty
to the corporation its stockholders, (2) acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (3)
liability under Section 174 of the DGCL, or (4) a transaction from which the
director derived an improper personal benefit. Article Eleventh further provides
that the liability of the Registrant's directors to the Registrant or its
stockholders will be limited or eliminated to the same extent as the DGCL if the
DGCL is amended in the future to limit or eliminate a director's liability.
Article Eleventh further provides that it may be repealed or modified only by
the affirmative vote of 80% of all stockholders entitled to vote on such
matters, considered as one class, in which event such repeal or modification
will be prospective only and will not adversely affect any right or protection
of a director of the Registrant existing at the time of such repeal or
modification.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the
Registrant pursuant to the foregoing provisions, the Registrant has been
informed that, in the opinion of the Commission, such indemnification is against
public policy as expressed in the Act and is therefore unenforceable.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits to this Registration Statement are listed on the Exhibit
Index included elsewhere herein.
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.
(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 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 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 herein, 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
provisions described in Item 6, 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 of 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
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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 of 1933, as amended
(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 Atlanta, Georgia, on this 18th day of
April, 2000.
CEREUS TECHNOLOGY PARTNERS, INC.
By: /s/ Steven A. Odom
---------------------------------------
Steven A. Odom
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Amendment to the Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
We, the undersigned officers and directors of Cereus Technology
Partners, Inc., hereby severally constitute and appoint Steven A. Odom and
Juliet M. Reising, and each of them, with full power of substitution, our true
and lawful attorneys and agents, to execute in our names and on our behalf in
the capacities indicated below, any and all amendments (including, without
limitation, post-effective amendments) to this Registration Statement and any
and all other instruments which such attorneys and agents, or any one of them,
deem necessary or advisable to enable Cereus Technology Partners, Inc. to comply
with the Securities Act, the rules, regulations and requirements of the
Securities Act in respect thereof, and the securities laws of any state or other
political subdivision or jurisdiction; and the undersigned officers and
directors do hereby severally ratify and confirm as our own acts and deeds all
that such attorneys and agents, and each of them, shall do or cause to be done
by virtue hereof. Any one of such attorneys and agents shall have, and may
exercise, all of the powers hereby conferred.
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SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Steven A. Odom Chief Executive Officer, April 18, 2000
---------------------------- Chairman and Director
Steven A. Odom (Principal Executive Officer)
/s/ Juliet M. Reising Chief Financial Officer, Treasurer, April 18, 2000
---------------------------- Secretary and Director
Juliet M. Reising (Principal Financial
Officer and Principal
Accounting Officer)
/s/ James M. Logsdon President, Chief Operating April 18, 2000
---------------------------- Officer and Director
James M. Logsdon
/s/ Max E. Bobbitt Director April 18, 2000
----------------------------
Max E. Bobbitt
/s/ Joseph R. Wright, Jr. Director April 18, 2000
----------------------------
Joseph R. Wright, Jr.
/s/ Amy L. Newmark Director April 18, 2000
----------------------------
Amy L. Newmark
/s/ Gary H. Heck Director April 18, 2000
----------------------------
Gary H. Heck
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EXHIBIT INDEX
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EXHIBIT
NO. DESCRIPTION
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<S> <C>
5.1 Opinion of Rogers & Hardin LLP
23.1 Consent of Rogers & Hardin LLP (contained in Exhibit 5.1 hereto)
23.2 Consent of KPMG LLP with respect to the financial statements
of Cereus Technology Partners, Inc. for the fiscal year ended
December 31, 1999.
23.3 Consent of Moore Stephens Frost, certified public accountants,
with respect to the financial statements of Cereus Technology
Partners, Inc. for the fiscal year ended December 31, 1998.
24.1 Powers of Attorney (included in the Signature Page hereto)
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Exhibit 5.1
ROGERS & HARDIN [LOGO]
ATTORNEYS AT LAW
A LIMITED PARTNERSHIP
2700 INTERNATIONAL TOWER, PEACHTREE CENTER
229 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30303-1601
(404) 522-4700
FACSIMILE: (404) 525-2224
April 19, 2000
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
RE: CEREUS TECHNOLOGY PARTNERS, INC.
REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have acted as counsel to Cereus Technology Partners, Inc. (the
"Company") in connection with the filing by the Company of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission (the "Commission") registering under the Securities Act of
1933, as amended (the "Act"), up to 3,000,000 shares of the common stock, par
value $.01 per share (the "Common Stock"), of the Company issuable pursuant to
the Cereus Technology Partners, Inc. 1997 Stock Option Plan, as amended (the
"Plan"). All such shares of Common Stock are referred to herein as the "Shares".
The opinion hereinafter set forth is given pursuant to Item 8 of Form
S-8 and Item 601 of Regulation S-K. Such opinion is given solely for the benefit
of the Commission, may be relied upon only by the Commission in connection with
the Registration Statement and may not be used, circulated, quoted or referred
to by or filed with any other person or entity, including any other governmental
unit or agency, without first obtaining the express written consent of this
firm.
In giving the opinion hereinafter set forth, we have examined the
minutes of the proceedings of the stockholders and the Board of Directors of the
Company, the Plan and such other agreements, documents, instruments and records
as we deemed necessary or appropriate under the circumstances for us to express
the opinion hereinafter set forth. As to various factual matters that are
material to our opinion, we have relied upon certificates of officers of the
Company and certificates of various public officials. In making the foregoing
examinations, we assumed the genuineness of all signatures, the authenticity of
all documents submitted to us as originals, the conformity to the original
documents of all
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ROGERS & HARDIN [LOGO]
A LIMITED PARTNERSHIP
Securities and Exchange Commission
April 19, 2000
Page 2
documents submitted to us as copies, the authority of the person or persons who
executed each of such documents on behalf of any person or entity other than the
Company, the correctness and accuracy of all certificates of officers of the
Company and the correctness and accuracy of all certificates of various public
officials.
Based upon and subject to the foregoing, we are of the opinion that the
Shares, when issued in accordance with the Plan against payment in full of the
purchase price therefor, will be validly issued, fully paid and nonassessable.
Our conclusions are limited to the matters expressly set forth as our
"opinion" in the immediately preceding paragraph, and no opinion is implied or
is to be inferred beyond the matters expressly so stated. Such opinion is given
as of the date hereof, and we expressly decline any undertaking to revise or
update such opinion subsequent to the date hereof or to advise the Commission of
any matter arising subsequent to the date hereof that would cause us to modify,
in whole or in part, such opinion.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving the foregoing consent, we do not admit that we
are in the category of persons whose consent is required under Section 7 of the
Act or the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Rogers & Hardin
ROGERS & HARDIN
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Exhibit 23.2
Consent of Independent Accountants
To the Board of Directors
Cereus Technology Partners, Inc.:
We hereby consent to the incorporation by reference in the registration
statement on Form S-8 filed April 19, 2000 of Cereus Technology Partners, Inc.
of our report dated April 3, 2000 relating to the consolidated balance sheet of
Cereus Technology Partners, Inc. and subsidiaries as of December 31, 1999 and
the related consolidated statements of operations, and stockholders' equity,
and cash flows for the year then ended, which report appears in the December
31, 1999 annual report on Form 10-KSB of Cereus Technology Partners, Inc.
/s/ KPMG LLP
KPMG LLP
Atlanta, Georgia
April 19, 2000
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Exhibit 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
on Form S-8, pertaining to the registration of 3,000,000 shares of Cereus
Technology Partners, Inc. (the "Company") Common Stock to be issued under the
Cereus Technology Partners, Inc. 1997 Stock Option Plan, of our report dated
February 19, 1999 on our audit of the consolidated financial statements of the
Company for the year ended December 31, 1998, incorporated by reference into the
Company's Annual Report on Form 10-KSB for the year ended December 31, 1999,
filed with the Securities and Exchange Commission.
/s/ MOORE STEPHENS FROST
-----------------------
Moore Stephens Frost
Little Rock, Arkansas
April 18, 2000
