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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 7, 2000
REGISTRATION NO. 333-___________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SMITH-GARDNER & ASSOCIATES, INC.
(Exact Name of Registrant as Specified in its Charter)
FLORIDA 65-0090038
(State or Other Jurisdiction of Incorporation (I.R.S. Employer
or Organization) Identification No.)
1615 SOUTH CONGRESS AVENUE
DELRAY BEACH, FLORIDA 33445-6368
(Address, Including Zip Code of Principal Executive Offices)
MR. GARY G. HEGNA
CHIEF EXECUTIVE OFFICER
SMITH-GARDNER & ASSOCIATES, INC.
1615 SOUTH CONGRESS AVENUE
DELRAY BEACH, FLORIDA 33445-6368
(561) 265-2700
(Name, Address, and Telephone Number, Including Area Code, of Agent for Service)
SMITH-GARDNER & ASSOCIATES, INC. 1998 EMPLOYEE STOCK OPTION PLAN
SMITH-GARDNER & ASSOCIATES, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
COPIES OF ALL COMMUNICATIONS TO:
BRUCE I. MARCH
AKERMAN, SENTERFITT & EIDSON, P.A.
LAS OLAS CENTRE II, SUITE 1600
350 EAST LAS OLAS BOULEVARD
FORT LAUDERDALE, FLORIDA 33301-2229
(954) 463-2700
CALCULATION OF REGISTRATION FEE
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PROPOSED
MAXIMUM AMOUNT OF
TITLE OF AMOUNT TO PROPOSED MAXIMUM AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED BE REGISTERED (2) OFFERING PRICE PER SHARE (3) OFFERING PRICE (3) FEE
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Common Stock, par value $0.01 per
share (1) 1,000,000 shares $3.375 $3,375,000 $891.00
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(1) Includes 750,000 shares issuable under the Smith-Gardner & Associates,
Inc. 1998 Stock Option Plan and 250,000 shares issuable under the
Smith-Gardner & Associates, Inc. Employee Stock Purchase Plan
(collectively the "Plans").
(2) This Registration Statement also covers any additional shares that may
hereafter become issuable as a result of the adjustment provisions of
the Plans.
(3) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 under the Securities Act of 1933, as amended.
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PART I
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
The documents containing the information specified in Part I of Form
S-8 will be sent or given to participants in the 1998 Stock Option Plan and the
Employee Stock Purchase Plan (collectively the "Plans") of Smith-Gardner &
Associates, Inc. (the "Company") as specified by Rule 428(b)(1) promulgated by
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Securities Act").
Such documents are not being filed with the Commission, but constitute
(along with the documents incorporated by reference into the Registration
Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act. The documents incorporated
by reference into the Registration Statement pursuant to Item 3 of Part II
hereof will be available to participants in the Plans, without charge, upon
written or oral request. Any such request should be directed to Martin K.
Weinbaum, Chief Financial Officer, Smith-Gardner & Associates, Inc., 1615 South
Congress Avenue, Delray Beach, Florida 33445-6368, Telephone (561) 265-2700.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
(Not Required in Prospectus)
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, which have been filed by Smith-Gardner &
Associates, Inc. (the "Company") with the Commission pursuant to the Securities
Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999;
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2000;
(c) The Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 2000;
(d) The Company's Current Reports on Form 8-K filed with the
Commission on May 26, 2000 and July 3, 2000; and
(e) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed with the
Commission on January 26, 1999, and any amendment or report
filed with the Commission for the purpose of updating such
description.
In addition, all documents filed by the Registrant with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date
of this Registration Statement and prior to the termination of the offering
shall be deemed to be incorporated by reference into this Registration Statement
and to be a part hereof from the date of the filing of such document with the
Commission. Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes of the
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 superseded such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of the Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable. The class of securities to be offered is registered
under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Articles of Incorporation and the Company's Bylaws
provide that the Company shall, to the fullest extent permitted by law,
indemnify all directors of the Company, as well as any officers or employees of
the Company to whom the Company has agreed to grant indemnification.
Section 607.0850(1) of the Florida Business Corporation Act (the
"FBCA") provides that a Florida corporation, such as the Company, shall have the
power to indemnify any person who was or is a party to any proceeding (other
than an action by, or in the right of, the corporation), by reason of the fact
that he 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 the corporation or is or was serving at the request of the
corporation as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise against liability
incurred in connection with such proceeding, including any appeal thereof, if he
acted in good faith and in a manner he reasonably believed to be in, or
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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.
Section 607.0850(2) of the FBCA provides that a Florida corporation
shall have the power to indemnify any person, who was or is a party to any
proceeding by or in the right of the corporation to procure a judgment in its
favor by reason of the fact that he 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, partnership,
joint venture, trust or other enterprise, against expenses and amounts paid in
settlement not exceeding, in the judgment of the board of directors, the
estimated expense of litigating the proceeding to conclusion, actually and
reasonably incurred in connection with the defense or settlement of such
proceeding, including any appeal thereof. Such indemnification shall be
authorized 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,
except that no indemnification shall be made under this subsection in respect of
any claim, issue, or matter as to which such person shall have been adjudged to
be liable unless, and only to the extent that, the court in which such
proceeding was brought, or any other court of competent jurisdiction, shall
determine upon application that, despite the adjudication of liability but in
view of all circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such court shall deem proper.
Section 607.850 of the FBCA further provides that: (i) to the extent
that a director, officer, employee or agent of a corporation has been successful
on the merits or otherwise in defense of any proceeding referred to in
subsection (1) or subsection (2), or in defense of any proceeding referred to in
subsection (1) or subsection (2), or in defense of any claim, issue, or matter
therein, he shall be indemnified against expense actually and reasonably
incurred by him in connection therewith; (ii) indemnification provided pursuant
to Section 607.0850 is not exclusive; and (iii) the corporation may purchase and
maintain insurance on behalf of a director or officer of the corporation against
any liability asserted against him or incurred by him in any such capacity or
arising out of his status as such whether or not the corporation would have the
power to indemnify him against such liabilities under Section 607.0850.
Notwithstanding the foregoing, Section 607.0850 of the FBCA provides
that indemnification or advancement of expenses shall not be made to or on
behalf of any director, officer, employee or agent if a judgment or other final
adjudication establishes that his actions, or omissions to act, were material to
the cause of action so adjudicated and constitute: (i) a violation of the
criminal law, unless the director, officer, employee or agent had reasonable
cause to believe his conduct was lawful or had no reasonable cause to believe
his conduct was unlawful; (ii) a transaction from which the director, officer,
employee or agent derived an improper personal benefit; (iii) in the case of a
director, a circumstance under which the liability provisions regarding unlawful
distributions are applicable; or (iv) willful misconduct or a conscious
disregard for the best interests of the corporation in a proceeding by or in the
right of the corporation to procure a judgment in its favor or in a proceeding
by or in the right of a shareholder.
Section 607.0831 of the FBCA provides that a director of a Florida
corporation is not personally liable for monetary damages to the corporation or
any other person for any statement, vote, decision, or failure to act, regarding
corporate management or policy, by a director, unless: (i) the director breached
or failed to perform his duties as a director; and (ii) the director's breach
of, or failure to perform, those duties constitutes: (A) a violation of criminal
law, unless the director had reasonable cause to believe his conduct was lawful
or had no reasonable cause to believe his conduct was unlawful; (B) a
transaction from which the director derived an improper personal benefit, either
directly or indirectly; (C) a circumstance under which the liability provisions
regarding unlawful distributions are applicable; (D) in a proceeding by or in
the right of the corporation to procure a judgment in its favor or by or in the
right of a shareholder, conscious disregard for the best interest of the
corporation, or willful misconduct; or (E) in a proceeding by or in the right of
someone other than the corporation or a shareholder, recklessness or an act or
omission which was committed in bad faith or with malicious purpose or in a
manner exhibiting wanton and willful disregard of human rights, safety, or
property.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
The exhibits filed as part of this Registration Statement are as
follows:
EXHIBIT
NUMBER DESCRIPTION
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4.1 -- Amended and Restated Articles of Incorporation of the
Company, as amended (incorporated by reference to
Exhibit 3.2 of the Company's Registration Statement
on Form S-1 -- Regis. No. 333-63125).
4.2 -- By-Laws of the Company, as amended (incorporated by
reference to Exhibit 3.4 of the Company's
Registration Statement on Form S-1 -- Regis. No.
333-63125).
4.3 -- Form of certificate of Common Stock of the Company
(incorporated by reference to Exhibit 4.1 of the
Company's Registration Statement on Form S-1 --
Regis. No. 333-63125).
5.1 -- Opinion of Akerman, Senterfitt & Eidson, P.A.
10.1 -- Smith-Gardner & Associates, Inc. Employee Stock
Purchase Plan (incorporated by reference to Annex A
of the Company's Definitive Proxy Statement on
Schedule 14A filed on April 12, 2000).
10.2 -- Smith-Gardner & Associates, Inc. 1998 Employee Stock
Option Plan, as amended (incorporated by reference to
Annex B of the Company's Definitive Proxy Statement
on Schedule 14A filed on April 12, 2000).
23.1 -- Consent of KPMG LLP.
23.2 -- Consent of Akerman, Senterfitt & Eidson, P.A.
(included in opinion filed as Exhibit 5.1).
24.1 -- Powers of Attorney (included as part of the signature
page hereto).
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
A. (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; and
(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.
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provided, however, that paragraphs (a)(1)(i) and (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 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 this 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 herein, 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, each filing of the
Registrant's annual report pursuant to Section 13(a) or 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 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 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 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 of 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 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 the City of Delray Beach, State of Florida, on the 7th day
of November, 2000.
SMITH-GARDNER & ASSOCIATES, INC.
By: /s/ Gary G. Hegna
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Gary G. Hegna
Chief Executive Officer and
Chairman of the Board
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Gary G. Hegna and Martin K.
Weinbaum his true and lawful attorneys-in-fact, each acting alone, with full
powers of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities to sign any or all amendments, including any
post-effective amendments, to this registration statement, and to file the same,
with exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorneys-in-fact or their substitutes, each acting alone, may lawfully do
or cause to be done by virtue hereof.
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 dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ GARY G. HEGNA CHIEF EXECUTIVE OFFICER AND DIRECTOR NOVEMBER 7, 2000
- -------------------------------------------- (PRINCIPAL EXECUTIVE OFFICER)
Gary G. Hegna
VICE PRESIDENT - FINANCE, CHIEF
/s/ MARTIN K. WEINBAUM FINANCIAL OFFICER, SECRETARY AND NOVEMBER 7, 2000
- -------------------------------------------- TREASURER (PRINCIPAL FINANCIAL
Martin K. Weinbaum OFFICER)
/s/ ALLAN GARDNER CHIEF TECHNOLOGY OFFICER AND NOVEMBER 7, 2000
- -------------------------------------------- DIRECTOR
Allan Gardner
/s/ WILBURN SMITH EXECUTIVE VICE PRESIDENT-SALES AND NOVEMBER 7, 2000
- -------------------------------------------- DIRECTOR
Wilburn Smith
/s/ FRANCIS H. ZENIE DIRECTOR NOVEMBER 7, 2000
- --------------------------------------------
Francis H. Zenie
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Signature Title Date
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/s/ ROBERT KNEIP DIRECTOR NOVEMBER 7, 2000
- --------------------------------------------
Robert Kneip
/s/ JAMES J. FELCYN, JR. DIRECTOR NOVEMBER 7, 2000
- --------------------------------------------
James J. Felcyn, Jr.
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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4.1 -- AMENDED AND RESTATED ARTICLES OF INCORPORATION OF THE
COMPANY, AS AMENDED (INCORPORATED BY REFERENCE TO
EXHIBIT 3.2 OF THE COMPANY'S REGISTRATION STATEMENT
ON FORM S-1 -- REGIS. NO. 333-63125).
4.2 -- BY-LAWS OF THE COMPANY, AS AMENDED (INCORPORATED BY
REFERENCE TO EXHIBIT 3.4 OF THE COMPANY'S
REGISTRATION STATEMENT ON FORM S-1 -- REGIS. NO.
333-63125).
4.3 -- FORM OF CERTIFICATE OF COMMON STOCK OF THE COMPANY
(INCORPORATED BY REFERENCE TO EXHIBIT 4.1 OF THE
COMPANY'S REGISTRATION STATEMENT ON FORM S-1 --
REGIS. NO. 333-63125).
5.1 -- OPINION OF AKERMAN, SENTERFITT & EIDSON, P.A.
10.1 -- SMITH-GARDNER & ASSOCIATES, INC. EMPLOYEE STOCK
PURCHASE PLAN (INCORPORATED BY REFERENCE TO ANNEX A
OF THE COMPANY'S DEFINITIVE PROXY STATEMENT ON
SCHEDULE 14A FILED ON APRIL 12, 2000).
10.2 -- SMITH-GARDNER & ASSOCIATES, INC. 1998 EMPLOYEE STOCK
OPTION PLAN, AS AMENDED (INCORPORATED BY REFERENCE TO
ANNEX B OF THE COMPANY'S DEFINITIVE PROXY STATEMENT
ON SCHEDULE 14A FILED ON APRIL 12, 2000).
23.1 -- CONSENT OF KPMG LLP.
23.2 -- CONSENT OF AKERMAN, SENTERFITT & EIDSON, P.A.
(INCLUDED IN OPINION FILED AS EXHIBIT 5.1).
24.1 -- POWERS OF ATTORNEY (INCLUDED AS PART OF THE SIGNATURE
PAGE HERETO).