REGISTRATION NO. 333-_________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PRIVATE BUSINESS, INC.
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(Exact Name of Registrant as Specified in its Charter)
Tennessee 62-1453841
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
9010 Overlook Boulevard
Brentwood, Tennessee 37027
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(Address of Principal Executive Offices)
(Zip Code)
Private Business, Inc. 2000 Employee Stock Purchase Plan
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(Full Name of Plan)
Thomas L. Black
9010 Overlook Boulevard, Brentwood, Tennessee 37027
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(Name and Address of Agent for Service)
(615) 221-8400
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(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
---------------- -------------- ------------------- ------------------------ ----------------
Towne Services, Inc. 1996 260,561 Shares (3) $1.70 $442,954 $111
Stock Option Plan,
Common Stock, no par value
Towne Services, Inc. 1998 500,020 Shares (4) $1.70 $850,034 $213
Stock Option Plan,
Common Stock, no par value
Towne Services, Inc. Amended 53,637 Shares (5) $1.70 $ 91,183 $ 23
and Restated Director Stock
Option Plan,
Common Stock, no par value
Non-Qualified Options, 178,978 Shares (6) $1.70 $304,263 $ 76
Common Stock, no par value
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933 as
amended (the "Securities Act"), this registration statement also covers
an indeterminate number of additional shares that may become issuable
pursuant to the anti-dilution adjustment provisions of the Plans to
which this Registration Statement relates.
(2) This estimation is solely for the purpose of calculating the
registration fee pursuant to Rules 457 (c) and (h) and is based on
993,196 shares of common stock being offered at an exercise price of
$1.70 based upon the average of the high and low prices of the common
stock on October 29, 2001, as reported by the National Association of
Securities Dealer's automated quotation system.
(3) This Registration Statement covers 260,561 shares of Common Stock that
may be issued upon exercise of options granted under the Towne Services,
Inc. 1996 Stock Option Plan.
(4) This Registration Statement covers 500,020 shares of Common Stock that
may be issued upon exercise of options granted under the Towne Services,
Inc. 1998 Stock Option Plan.
(5) This Registration Statement covers 53,637 shares of Common Stock that
may be issued upon exercise of options granted under the Towne Services,
Inc. Amended and Restated Stock Option Plan.
(6) This Registration Statement covers 178,978 shares of Common Stock that
may be issued upon exercise of options granted under Non-Qualified Stock
Option Agreements.
The Index to Exhibits appears on sequentially numbered page E-1
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) Registration Statement on Form S-4/A filed with the SEC on
May 18, 2001;
(2) Quarterly Report on Form 10-Q for the fiscal quarter ended
June 30, 2001;
(3) Current Report on Form 8-K filed with the SEC on October 8,
2001 and
(4) 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
The consolidated financial statements and schedules of the Company
incorporated by reference herein have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their reports with respect
thereto, and are incorporated by reference in reliance upon the authority of
said firm as experts in giving said reports.
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.
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 paragraphs (1)(i) and (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 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.
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.
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 November 2, 2001.
Private Business, Inc.
/s/ Thomas L. Black
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Thomas L. Black
Chief Executive Officer and Director
Date: November 2, 2001
POWER OF ATTORNEY
Each person whose signature to the Registration statement appears below
hereby appoints Thomas L. Black or Fred P. Read and each of them, any one of
whom may act without the joinder of the other, 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.
SIGNATURE TITLE DATE
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/s/ William B. King
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William B. King Chairman of the Board October 25, 2001
/s/ Thomas L. Black
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Thomas L. Black Chief Executive Officer October 25, 2001
and Director
/s/ Fred P. Read
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Fred P. Read Chief Financial Officer October 25, 2001
(Principal Financial and
Accounting Officer
/s/ Gregory S. Daily
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Gregory S. Daily Director October 25, 2001
/s/ Brian J. Conway
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Brian J. Conway Director October 25, 2001
/s/ Bruce R. Evans
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Bruce R. Evans Director October 25, 2001
/s/ Frank W. Brown
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Frank W. Brown Director October 25, 2001
/s/ Richardson M. Roberts
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Richardson M. Roberts Director October 25, 2001
/s/ Glenn W. Sturm
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Glenn W. Sturm Director October 25, 2001
EXHIBIT INDEX
Exhibit No. Description of Exhibit
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4.1 Amended and Restated Charter of Company (incorporated by reference to
Exhibit 3.1 to the Company's Registration Statement No. 333-75013 on
Form S-1)
4.2 Amended and Restated By-Laws of Company (incorporated by reference to
Exhibit 3.2 to the Company's Registration Statement No. 333-75013 on
Form S-1)
4.3 Towne Services, Inc. 1996 Stock Option Plan (incorporated by reference
to Exhibit 10.1 to the Towne Services, Inc. Registration Statement No.
333-76859 on Form S-1)
4.4 Towne Services, Inc. 1998 Stock Option Plan (incorporated by reference
to Exhibit 10.2 to the Towne Services, Inc. Registration Statement No.
333-76859 on Form S-1)
4.5 Towne Services, Inc. Amended and Restated Director Stock Option Plan
(incorporated by reference to Exhibit 10.4 to the Towne Services, Inc.
Annual Report on Form 10-K for the fiscal year ending December 31, 2000)
4.6 Form of Towne Services, Inc. Non-Qualified Stock Option Agreement
(incorporated by reference to Exhibit 10.3 to the Towne Services, Inc.
Registration Statement No. 333-76859 on Form S-1)
5.1 Opinion of Harwell Howard Hyne Gabbert & Manner, P.C.
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants
23.2 Consent of Harwell Howard Hyne Gabbert & Manner, P.C. (contained in
Exhibit 5.1)
24 Power of Attorney (see signature page)
E-1