As filed with the Securities and Exchange Commission on October 10, 2000.
Registration No. 333 -
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------------
E-XACT TRANSACTIONS LTD.
(Exact name of registrant as specified in its charter)
------------------------------------
DELAWARE 98-0212722
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
143 UNION BLVD., SUITE 850
P.O. BOX 38
LAKEWOOD, COLORADO 80228
(303) 716-7090
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
E-XACT TRANSACTIONS LTD.
STOCK OPTION PLAN
(Full title of plan)
----------------------
WITH A COPY TO:
LESTER R. WOODWARD, ESQ.
DAVIS, GRAHAM & STUBBS LLP
1550 SEVENTEENTH STREET, SUITE 500
DENVER, COLORADO 80202
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
----------------------
CALCULATION OF REGISTRATION FEE
=======================================================================================================================
Title of each class of Proposed maximum Proposed maximum
securities to be registered offering price per aggregate offering Amount of
Amount to be registered share(1) price(1) registration fee
- -----------------------------------------------------------------------------------------------------------------------
Shares subject to options 10,000 $2.40(1) $24,000 $6.33
granted june 21, 2000
- -----------------------------------------------------------------------------------------------------------------------
Shares subject to options 1,247,800 $1.00(1) $1,247,800 $329.41
granted january 12, 2000
and march 15, 2000
- -----------------------------------------------------------------------------------------------------------------------
Shares subject to options 28,700 $4.00(1) $114,800 $30.30
granted april 19, 2000
- -----------------------------------------------------------------------------------------------------------------------
Shares to issued under the plan 223,500 $1.04(2) $232,440 $61.36
- -----------------------------------------------------------------------------------------------------------------------
Total 1,510,000 $1,610,100 $427.40
=======================================================================================================================
(1) Computed in accordance with rule 457(h)(l).
(2) Estimated solely for the purposes of calculating the amount of the registration fee pursuant to Rule 457(h)(1). The price per
share and aggregate offering price are based upon the average of the high and low prices of the shares as of October 9, 2000, as
reported on the Canadian Venture Exchange.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which are filed with the Securities and
Exchange Commission, are incorporated in this Registration Statement by
reference:
(a) The Company's Current Report on Form 8-K, filed with the Commission
on September 20, 2000.
(b) The Company's Quarterly Report on Form 10-QSB for the quarter ended
June 30, filed with the Commission on August 21, 2000.
(c) The Company's Current Report on Form 8-K, filed with the Commission
on August 10, 2000.
(d) The Company's Quarterly Report on Form 10-QSB for the quarter ended
March 31, 2000, filed with the Commission on May 22, 2000.
(e) The Company's Annual Report on Form 10-KSB for the year ended
December 31, 1999, filed with the Commission on April 14, 2000.
(f) The Company's Post-Effective Amendment No. 1 to its Registration
Statement on Form SB-2, filed with the Commission on March 3, 2000.
(g) The Company's Initial Public Offering Prospectus on Form 424, filed
with the Commission on February 25, 2000.
(h) The Company's Selling Stockholder Prospectus on Form 424, filed with
the Commission on February 25, 2000.
(i) The Company's Post-Effective Amendments No. 2 to its Registration
Statement on Form SB-2, filed with the Commission on December 21, 1999,
February 8, 2000 and February 14, 2000.
(j) The Company's Registration Statement on Form SB-2, filed with the
Commission on October 22, 1999.
(k) All other documents filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent
to the date of this Registration Statement and prior to the filing of a
Post-Effective Amendment to this Registration Statement indicating that all
securities offered under the Registration Statement have been sold, or
deregistering all securities then remaining unsold.
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
-2-
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 statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
4. DESCRIPTION OF SECURITIES.
Not applicable.
5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Bylaws and Certificate of Incorporation provide that the
Company shall, to the full extent permitted by the General Corporation Law of
the State of Delaware, as amended from time to time, indemnify all directors and
officers of the Company. Section 145 of the Delaware General Corporation Law
provides in part that a corporation shall have the power to 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 (other than an action by or in
the right of the corporation) by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation or other enterprise, against expenses (including attorneys'
fees), judgments, 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 interests of the corporation, and with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
Similar indemnity is authorized for such persons against expenses (including
attorneys' fees) actually and reasonably incurred in defense or settlement of
any threatened, pending or completed action or suit by or in the right of the
corporation, if such person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation, and
provided further that (unless a court of competent jurisdiction otherwise
provides) such person shall not have been adjudged liable to the corporation.
Any such indemnification may be made only as authorized in each specific case
upon a determination by the stockholders or disinterested directors that
indemnification is proper because the indemnitee has met the applicable standard
of conduct.
Additionally, the Company's Bylaws provide that the Company shall
advance all reasonable expenses incurred by an indemnitee in connection with any
civil, criminal, administrative or investigative action, suit or proceeding if
the indemnitee undertakes to repay such amount if it is ultimately determined
that such indemnitee is not entitled to be indemnified by the Company as
authorized in the Bylaws, the Certificate of Incorporation or the General
Corporation Law of the State of Delaware.
-3-
7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
8. EXHIBITS
4.1 E-xact Transactions Ltd. Stock Option Plan.
5.1 Opinion and Consent of Davis, Graham & Stubbs LLP.
23.1 Consent of Davis Graham & Stubbs LLP (included in Exhibit 5.1).
23.2 Consent of Deloitte & Touche LLP.
25.1 Power of Attorney (included in signature page).
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 of 1933;
(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 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 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.
(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; and
-4-
(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
Company's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) 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 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 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 Act and will be governed by the final adjudication of
such issue.
-5-
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Lakewood, State of Colorado, on the 2nd day of
October, 2000.
E-XACT TRANSACTIONS LTD.
By: /s/ TED HENDERSON
-----------------------------
Ted Henderson
President
By: /s/ PETER FAHLMAN
-----------------------------
Peter Fahlman
Vice President
By: /s/ LANCE TRACEY
-----------------------------
Lance Tracey
Chairman of the Board
By: /s/ JOHN ROSE
-----------------------------
John Rose
Director
By: /s/ PAUL MACNEILL
-----------------------------
Paul MacNeill
Director
By: /s/ DIETER HEIDRICH
-----------------------------
Dieter Heidrich
Director
By: /S/ EDMUND SHUNG
-----------------------------
Edmund Shung
Chief Financial Officer
-6-
THE PLAN. Pursuant to the requirements of the Securities Act of 1933,
the trustees (or other persons who administer the employee benefit plan) have
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Lakewood, State of
Colorado on October 2, 2000.
E-XACT TRANSACTIONS LTD. STOCK OPTION PLAN
By: /s/ JOHN ROSE
----------------------------------------
Director
By: /s/ PAUL MACNEILL
----------------------------------------
Director
By: /s/ EDMUND SHUNG
----------------------------------------
Edmund Shung
Chief Financial Officer
-7-
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Ted Henderson and Lester Woodward, and
each or any of them, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments and any registration statement filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended) to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agents, or any of them, or their or his substitutes or
substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
--------- ----- ----
>
/s/ Ted Henderson
- --------------------------------
Ted Henderson President and October 2, 2000
Chief Executive Officer
/s/ Peter Fahlman
- --------------------------------
Peter Fahlman Vice President October 2, 2000
/s/ Lance Tracey
- -------------------------------
Lance Tracey Chairman of the Board October 2, 2000
/s/ John Rose
- -------------------------------
John Rose Director October 2, 2000
/s/ Paul MacNeill
- -------------------------------
Paul MacNeill Director October 2, 2000
/s/ Dieter Heidrich
- --------------------------------
Dieter Heidrich Director October 2, 2000
EXHIBIT INDEX
Exhibit Sequential
No. Description Page No.
- -------- ----------- ----------
4.1 E-xact Transactions Ltd. Stock Option Plan.
5.1 Opinion and Consent of Davis Graham & Stubbs LLP.
23.1 Consent of Davis Graham & Stubbs LLP (included in Exhibit 5.1).
23.2 Consent of Deloitte & Touche LLP.
25.1 Power of Attorney (included in signature page).