Registration No. ___________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PRIVATE BUSINESS, INC.
(Exact Name of Registrant as Specified in its Charter)
| | | |
| Tennessee | | 62-1453841 |
| | | |
| (State or other jurisdiction | | (I.R.S. Employer |
| of incorporation or organization) | | Identification Number) |
9020 Overlook Boulevard
Brentwood, Tennessee 37027
(Address of Principal Executive Offices)
(Zip Code)
Private Business, Inc. 2005 Long-Term Equity Incentive Plan
(Full Name of Plan)
Michael Berman
9020 Overlook Boulevard, Brentwood, Tennessee 37027
(Name and Address of Agent for Service)
(615) 221-8400
(Telephone number, including area code for agent for service)
CALCULATION OF REGISTRATION FEE
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| | | | | | | | | | Proposed | | | | | | | |
| | Title of Securities | | | Amount to be | | | Maximum Offering | | | Proposed Maximum | | | Amount of | |
| | to be Registered | | | Registered (1) | | | Price per Share(2) | | | Aggregate Offering Price | | | Registration Fee | |
| | Common Stock, no par value | | | 5,036,880 Shares (3) | | | $ | 1.80 | | | | $ | 9,066,384 | | | | $ | 970.10 | | |
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| (1) | | In addition, pursuant to Rule 416(a) under the Securities Act of 1933, this Registration Statement also covers an indeterminate amount of shares as may be issued pursuant to stock splits, stock dividends and certain anti-dilution provisions contained in the Plan. |
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| (2) | | This estimation is solely for the purpose of calculating the registration fee pursuant to Rules 457 (c) and (h) and is based on 5,036,880 shares of common stock being offered at an exercise price of $1.80 based upon the average of the high and low prices of the common stock on April 20, 2006, as reported by the National Association of Securities Dealer’s automated quotation system. |
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| (3) | | This Registration Statement covers 5,036,880 shares of Common Stock that may be issued under the Private Business, Inc. 2005 Long-Term Equity Incentive Plan. |
The Index to Exhibits appears on sequentially numbered page E-1
TABLE OF CONTENTS
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information.
Not filed as part of this Registration Statement pursuant to the Note to Part I of Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information.
Not filed as part of this Registration Statement pursuant to the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed below are incorporated by reference in this Registration Statement. In addition, all documents subsequently filed by Private Business, Inc. (the “Company,” the “Registrant” or “Private Business”) pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (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 thereof 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 or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
| | (1) | | The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2005; |
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| | (2) | | All other reports filed by Private Business, Inc. pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 since December 31, 2005; |
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| | (3) | | The description of the Company’s shares of Common Stock, no par value (the “Common Stock”), contained in Amendment No. 3 to the Registration Statement on Form S-1 (File Number 333-75013), including any amendment or report filed for the purposes of updating such description. |
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification.
Under our charter, and in accordance with Section 48-18-502 of the Tennessee Business Corporation Act (“TBCA”), Private Business will indemnify 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 (other than a “derivative” action by or in the right of Private Business) by reason of the fact that such person is or was a director of Private Business, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of Private Business, and, with respect to any criminal action or proceeding, had no reasonable cause to believe was unlawful.
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The charter provides that Private Business will pay for the expenses incurred by an indemnified director in defending the proceedings specified above in advance of their final disposition, provided that such person agrees to reimburse Private Business if it is ultimately determined that such person is not entitled to indemnification. The charter also provides that Private Business may, in its sole discretion, indemnify any person who is or was one of its employees and agents or any person who is or was serving at the request of Private Business as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise to the same degree as the foregoing indemnification of directors and officers. In addition, Private Business may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of Private Business or another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against and incurred by such person in such capacity, or arising out of the person’s status as such whether or not Private Business would have the power or obligation to indemnify such person against such liability under the provisions of the TBCA. Private Business maintains insurance for the benefit of Private Business’s officers and directors insuring such persons against various liabilities, including liabilities under the securities laws.
In addition, Private Business has entered into indemnification agreements with certain officers, directors and key employees.
Item 7. Exemption From Registration Claimed
Not applicable.
Item 8. Exhibits.
The Exhibits to this Registration Statement are listed in the Index to Exhibits on Page E-1 of this Registration Statement, which Index is incorporated herein by reference.
Item 9. Undertakings.
The Company 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 or high and 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 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:
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(A) Paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the registration statement is on Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in 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; and
(B) Paragraphs (a)(1)(i) and (a)(1)(ii) and (a)(i)(iii) of this section do not apply if the registration statement is on Form S-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in 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, or is contained in a form of prospectus, filed pursuant to Rule 424(b) of the rules and regulations under the Securities Act of 1933, that is part of this registration statement.
(C) Provided further, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is for an offering of asset-backed securities on Form S-1 or Form S-3, and the information required to be included in a post-effective amendment is provided pursuant to Item 1100(c) of Regulation AB.
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 registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
4. The Company 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 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 therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
5. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to partners, directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Securities and Exchange 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 Company of expenses incurred or paid by a partner, director, officer or controlling person of the Company in the successful defense of any action suit or proceeding) is asserted by such partner, 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.
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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 Brentwood, State of Tennessee, on April 24, 2006.
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| | Private Business, Inc.
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| | /s/ G. Lynn Boggs | |
| | G. Lynn Boggs | |
| | Chief Executive Officer and Director | |
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Date: April 27, 2006
Power of Attorney
Each person whose signature to the Registration statement appears below hereby appoints G. Lynn Boggs who may act as his attorney-in-fact to execute in the name and behalf of any such person, individually and in the capacity stated below, and to file all amendments and post-effective amendments to this Registration Statement, which amendment or amendments may make such changes and additions in this Registration Statement as such attorney-in-fact may deem necessary or appropriate.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the date indicated.
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| Signature | | Title | | Date |
/s/ G. Lynn Boggs G. Lynn Boggs | | Chief Executive Officer and Director | | April 27, 2006 |
| /s/ J. Scott Craighead J. Scott Craighead | | Chief Financial Officer (Principal Financial and Accounting Officer) | | April 27, 2006 |
| /s/ Lawrence A. Hough Lawrence A. Hough | | Director | | April 27, 2006 |
| /s/ Robert A. McCabe, Jr. Robert A. McCabe, Jr. | | Director | | April 27, 2006 |
| /s/ John D. Schneider John D. Schneider | | Director | | April 26, 2006 |
| /s/ David W. Glenn David W. Glenn | | Director | | April 27, 2006 |
| /s/ Thierry F. Ho Thierry F. Ho | | Director | | April 26, 2006 |
| /s/ David B. Ingram David B. Ingram | | Director | | April 26, 2006 |
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Exhibit Index
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| Exhibit No. |
| | 4.1.1 | | | Amended and Restated Charter of the Company (incorporated by reference to Exhibit 3.1 of the Company’s Registration Statement on No. 333-75013 Form S-1). |
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| | 4.1.2 | | | Charter Amendment Dated August 9, 2001 (incorporated by reference to Exhibit 3.3 of the Company’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2001). |
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| | 4.1.3 | | | Charter Amendment Dated January 16, 2004 (incorporated by reference to Exhibit B of the Company’s Definitive Proxy Statement on Schedule 14A filed on December 29, 2003). |
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| | 4.1.4 | | | Charter Amendment Dated January 23, 2006 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on January 26, 2006). |
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| | 4.1.5 | | | Charter Amendment Dated January 24, 2006 (incorporated by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K Dated January 26, 2006). |
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| | 4.2 | | | Amended and Restated Bylaws of Private Business (incorporated by reference to Exhibit 3.2 to the Company’s Registration Statement No. 333-75013 on Form S-1). |
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| | 4.3 | | | Bylaw Amendment Dated January 20, 2004 (incorporated by reference to Exhibit 3.2.1 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2003). |
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| | 4.4 | | | Private Business, Inc. 2005 Long-Term Equity Incentive Plan (incorporated by reference to Annex E to the Company’s Definitive Proxy Statement on Schedule 14A filed with the Securities and Exchange Commission on November 17, 2005). |
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| | 5.1 | | | Opinion of Harwell Howard Hyne Gabbert & Manner, P.C. |
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| | 23.1 | | | Consent of Grant Thornton, LLP |
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| | 23.2 | | | Consent of Stockman Kast Ryan & Co., LLP |
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| | 23.3 | | | Consent of Ernst & Young LLP |
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| | 23.4 | | | Consent of Harwell Howard Hyne Gabbert & Manner, P.C. (contained in Exhibit 5.1) |
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| | 24 | | | Power of Attorney (see signature page) |
E-1
