<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 13, 1997
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------
PRECISION RESPONSE CORPORATION
(Exact name of registrant as specified in its charter)
FLORIDA 59-2194806
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
--------------------
1505 N.W. 167TH STREET
MIAMI, FLORIDA 33169
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICE, INCLUDING ZIP CODE)
-------------------
PRECISION RESPONSE CORPORATION
1996 INCENTIVE STOCK PLAN
PRECISION RESPONSE CORPORATION
1996 NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
(FULL TITLE OF THE PLANS)
MARK J. GORDON
CHIEF EXECUTIVE OFFICER
PRECISION RESPONSE CORPORATION
1505 N.W. 167TH STREET
MIAMI, FLORIDA 33169
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(305) 626-4600
(TELEPHONE NUMBER, INCLUDING
AREA CODE, OF AGENT FOR SERVICE)
-------------------
COPY TO:
ALAN D. AXELROD, ESQ.
RUBIN BAUM LEVIN CONSTANT FRIEDMAN & BILZIN
2500 FIRST UNION FINANCIAL CENTER
200 SOUTH BISCAYNE BOULEVARD
MIAMI, FLORIDA 33131-2336
(305) 374-7580
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================================
PROPOSED PROPOSED MAXIMUM
AMOUNT TO BE MAXIMUM OFFERING AGGREGATE OFFERING AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED REGISTERED (1) PRICE PER SHARE (2) PRICE (2) REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
COMMON STOCK, $0.01 PAR VALUE 2,028,268 $34.88 $70,745,988 $21,438
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Includes 1,931,684 shares issuable under the Precision Response
Corporation 1996 Incentive Stock Plan and 96,584 shares issuable upon
exercise of options granted or to be granted under the Precision
Response Corporation 1996 Nonemployee Director Stock Option Plan.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rules 457(c) and 457(h) under the Securities Act of
1933, as amended, based upon an average of the high and low prices
reported on The Nasdaq Stock Market on January 8, 1997.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
*The document(s) containing the information specified in this Part I
will be sent or given to employees as specified by Rule 428(b)(1) under the
Securities Act of 1933, as amended (the "Securities Act"). Such documents will
not be filed with the Securities and Exchange Commission (the "Commission")
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 under the Securities Act. These documents and
the documents incorporated by reference in this Registration Statement pursuant
to Item 3 of Part II of this Registration Statement, taken together, shall
constitute a prospectus which meets the requirements of Section 10(a) of the
Securities Act.
I-1
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference in this
Registration Statement the following documents and information previously filed
with the Commission:
1. The Registrant's Prospectus forming part of the
Registrant's registration statement on Form S-1 (File No. 333-03209) declared
effective on July 16, 1996, which Prospectus was filed with the Commission
pursuant to Rule 424(b) under the Securities Act, and which contains the
Registrant's audited financial statements for the fiscal years ended December
31, 1993, 1994 and 1995 (the "Prospectus");
2. The Registrant's Quarterly Reports on Form 10-Q for the
fiscal quarters ended June 30 and September 30, 1996; and
3. The description of the Registrant's Common Stock to be
offered hereby which is contained in its registration statement on Form 8-A
(File No. 0-20941) filed with the Commission and declared effective on July 16,
1996, including any amendments or reports filed for the purpose of updating such
descriptions.
All documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended,
after the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities offered hereby 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 hereof from the date of filing of such documents.
Except as superseded or modified herein, any statement
contained in any document incorporated by reference herein 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
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 document.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain legal matters with respect to the validity of the
shares of Common Stock offered hereby are being passed upon for the Registrant
by Rubin Baum Levin Constant Friedman & Bilzin ("Rubin Baum"), Miami, Florida.
Richard D. Mondre, the Company's Executive Vice President, General Counsel
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<PAGE> 4
and Secretary and a director, is currently "Of Counsel" to Rubin Baum and was
previously a partner at that firm.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 607.0850 of the Florida Business Corporation Act (the
"Statute") sets forth conditions and limitations governing the indemnification
of officers, directors, and other persons.
Article TWELFTH of the Amended and Restated Articles of
Incorporation (the "Articles") and Article IX of the Bylaws (the "Bylaws") of
the Registrant contain certain indemnification provisions adopted pursuant to
authority contained in the Statute. The Articles contain a provision eliminating
the personal liability of its directors for monetary damages resulting from
breaches of their fiduciary duty to the extent permitted by the Statute. Under
the Bylaws, the Registrant will indemnify any person who is or was a director,
officer, employee, or agent of the Registrant or who is or was serving at the
request of the Registrant as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise against: (a)
liability incurred in connection with any proceeding (other than an action by or
in the right of the Registrant) to which such person was or is a party by reason
of acting in any such capacity, and (b) expenses and amounts paid in settlement
(not exceeding, in the judgment of the Registrant's board of directors, the
estimated expense of litigating the proceeding to conclusion) actually and
reasonably incurred in connection with the defense or settlement of any
proceeding by or in the right of the Registrant to procure a judgment in its
favor to which such person was or is a party by reason of acting in any such
capacity, provided that: (i) 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
Registrant and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful; and (ii) no
indemnification shall be made in respect of any claim, issue or matter in any
proceeding by or in the right of the Registrant 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 the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses as the court shall
deem proper. For purposes of Article IX of the Bylaws: (A) the term "expenses"
includes counsel fees, including those for appeal; (B) the term "liability"
includes obligations to pay a judgment, settlement, penalty, fine (including an
excise tax assessed with respect to any employee benefit plan), and expenses
actually and reasonably incurred with respect to a proceeding; and (C) the term
"proceeding" includes any threatened, pending, or completed action, suit, or
other type of proceeding, whether civil, criminal, administrative, or
investigative, and whether formal or informal.
Under the Bylaws, to the extent a director, officer, employee,
or agent of the Registrant has been successful on the merits or otherwise in
defense of any proceeding described above, or in the defense of any claim,
issue, or matter therein, such person shall be indemnified against expenses
actually and reasonably incurred by him in connection therewith. For all other
indemnification which may be provided under the Bylaws in connection with any
proceeding, unless made pursuant to a determination by a court, indemnification
shall be made only as authorized in the specific case upon a determination that
indemnification is proper in the circumstances because the director, officer,
employee or agent has met the applicable standard of conduct set forth in the
Bylaws, which determination shall be made: (a) by the board of directors by a
majority vote of a quorum consisting of directors who were not parties to such
proceeding; (b) if such quorum is not obtainable, or even if obtainable, by
majority vote of a committee duly designated
II-2
<PAGE> 5
by the board of directors consisting solely of two or more directors not at the
time parties to the proceeding; (c) by independent legal counsel selected by the
board of directors or a committee thereof as prescribed by the Statute; or (d)
by the shareholders by majority vote of a quorum consisting of shareholders who
were not parties to such proceeding or if such a quorum is not obtainable, by a
majority vote of shareholders who were not parties to such proceeding.
Evaluation as to reasonableness of expenses and authorization of indemnification
must be made in the same manner as the determination that indemnification is
permissible, except that if the determination of permissibility is made by
independent legal counsel, then the board of directors or the committee thereof
which appointed such legal counsel must evaluate the reasonableness of expenses.
The Bylaws also permit the Registrant to pay expenses incurred by its officers,
directors, employees, and agents in advance of the final disposition of a
proceeding, provided that the Registrant may advance expenses to a director or
officer only after receiving an undertaking by or on behalf of such director or
officer to repay such amount if he is ultimately found not to be entitled to
indemnification pursuant to the Bylaws.
The Registrant has entered into agreements to indemnify its
directors and executive officers, in addition to the indemnification provided
for in the Registrant's Articles and Bylaws. These agreements, among other
things, indemnify the Registrant's directors and officers for all direct and
indirect expenses and costs (including, without limitation, all reasonable
attorneys' fees and related disbursements, other out of pocket costs and
reasonable compensation for time spent by such persons for which they are not
otherwise compensated by the Registrant or any third person) and liabilities of
any type whatsoever (including, but not limited to, judgments, fines and amounts
paid in settlement) actually and reasonably incurred by such person in
connection with either the investigation, defense, settlement or appeal of any
threatened, pending or completed action, suit or other proceeding, including any
action by or in the right of the corporation, arising out of such person's
services as a director, officer, employee or other agent of the Registrant, any
subsidiary of the Registrant or any other company or enterprise to which the
person provides services at the request of the Registrant. The Registrant
believes that these provisions and agreements are necessary to attract and
retain talented and experienced directors and officers.
The Registrant has obtained liability insurance for the
benefit of its directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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<PAGE> 6
ITEM 8. EXHIBITS.
Exhibit No. Description
- ----------- -----------
[S] [C]
4.1 Amended and Restated Articles of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.1
to the Registrant's Registration Statement on Form
S-1 initially filed on May 6, 1996 (File No.
333-03209), as amended (the "S-1 Registration
Statement")).
4.2 Bylaws of the Registrant (incorporated by
reference to Exhibit 3.2 to the Registrant's
Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 1996 (File No. 0-20941)).
4.3 Precision Response Corporation 1996 Incentive Stock
Plan (incorporated by reference to Exhibit 10.1 to
the S-1 Registration Statement).
4.4 Precision Response Corporation 1996 Nonemployee
Director Stock Option Plan (incorporated by reference
to Exhibit 10.2 to the S-1 Registration Statement).
5.1 Opinion of Rubin Baum Levin Constant Friedman &
Bilzin regarding legality of Common Stock.*
15.1 Letter from Coopers & Lybrand L.L.P. regarding
Unaudited Interim Financial Information.*
23.1 Consent of Rubin Baum Levin Constant Friedman &
Bilzin (included in Exhibit 5.1).
23.2 Consent of Coopers & Lybrand L.L.P.*
23.3 Consent of Gurland & Goldberg, P.A.*
24.1 Power of Attorney (see page II-7).
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* Filed herewith.
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:
II-4
<PAGE> 7
(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 this
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
this Registration Statement;
(iii) To include any material information
with respect to the plan of distribution not previously
disclosed in this Registration Statement or any material
change to such information in this Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(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 with or
furnished to the Commission by the Registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
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.
(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) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this 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.
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 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 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 whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-5
<PAGE> 8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Miami, State of Florida, on January 13, 1997.
PRECISION RESPONSE CORPORATION
By: /s/ Mark J. Gordon
--------------------------------------
Mark J. Gordon
Chairman of the Board of Directors and
Chief Executive Officer
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<PAGE> 9
POWER OF ATTORNEY
We, the undersigned officers and directors of Precision Response
Corporation, do hereby constitute and appoint Mark J. Gordon and David L.
Epstein, and each of them, our true and lawful attorneys-in-fact and agents,
each with full power of substitution and resubstitution, for each of us and in
our name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) 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 and about the premises, as fully to all intents and
purposes as each of us might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
thereof.
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:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Mark J. Gordon Chairman of the Board and Chief January 13, 1997
- ----------------------------------- Executive Officer (Principal Executive
Mark J. Gordon Officer)
/s/ Paul O'Hara Senior Vice President - Finance and January 13, 1997
- ----------------------------------- Chief Financial Officer
Paul O'Hara (Principal Financial and Accounting
Officer)
/s/ David L. Epstein Director January 13, 1997
- -----------------------------------
David L. Epstein
/s/ Richard D. Mondre Director January 13, 1997
- -----------------------------------
Richard D. Mondre
/s/ James F. Murray Director January 13, 1997
- -----------------------------------
James F. Murray
/s/ Bernard J. Kosar, Jr. Director January 13, 1997
- -----------------------------------
Bernard J. Kosar, Jr.
/s/ Christian Mustad Director January 13, 1997
- -----------------------------------
Christian Mustad
/s/ Neil A. Natkow Director January 13, 1997
- -----------------------------------
Neil A. Natkow
</TABLE>
II-7
<PAGE> 10
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENT PAGE
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<S> <C> <C>
4.1 Amended and Restated Articles of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.1 to the
Registrant's Registration Statement on Form S-1 initially
filed on May 6, 1996 (File No. 333-03209), as amended (the
"S-1 Registration Statement")).
4.2 Bylaws of the Registrant (incorporated by reference to
Exhibit 3.2 to the Registrant's Quarterly Report on Form
10-Q for the fiscal quarter ended June 30, 1996 (File No.
0-20941).
4.3 Precision Response Corporation 1996 Incentive Stock Plan
(incorporated by reference to Exhibit 10.1 to the S-1
Registration Statement).
4.4 Precision Response Corporation 1996 Nonemployee Director
Stock Option Plan (incorporated by reference to Exhibit
10.2 to the S-1 Registration Statement).
5.1 Opinion of Rubin Baum Levin Constant Friedman & Bilzin.*
15.1 Letter from Coopers & Lybrand L.L.P. regarding Unaudited
Interim Financial Information.*
23.1 Consent of Rubin Baum Levin Constant Friedman & Bilzin
(included in Exhibit 5.1).
23.2 Consent of Coopers & Lybrand L.L.P.*
23.3 Consent of Gurland & Goldberg, P.A.*
24.1 Power of Attorney (see page II-7).
</TABLE>
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* Filed herewith.
<PAGE> 1
EXHIBIT 5.1
January 13, 1997
Precision Response Corporation
1505 N.W. 167th Street
Miami, Florida 33169
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
you with the Securities and Exchange Commission on the date hereof (the
"Registration Statement"), in connection with the registration under the
Securities Act of 1933, as amended (the "Securities Act"), of 2,028,268 shares
(the "Shares") of your Common Stock, $0.01 par value per share. The Shares are
reserved for issuance under the Precision Response Corporation 1996 Incentive
Stock Plan and the Precision Response Corporation 1996 Nonemployee Director
Stock Option Plan. As your legal counsel, we have examined the proceedings taken
and are familiar with the proceedings proposed to be taken by you in connection
with the issuance and sale of the Shares.
It is our opinion that, when issued and sold in the manner described in
the Registration Statement and the related prospectus, the Shares will be
legally and validly issued, fully paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement and any amendments thereto.
Very truly yours,
/s/ Rubin Baum Levin Constant Friedman & Bilzin
RUBIN BAUM LEVIN CONSTANT FRIEDMAN & BILZIN
<PAGE> 1
EXHIBIT 15.1
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Precision Response Corporation
Registration Statement on Form S-8
We are aware that our report, dated April 29, 1996, except for the second
paragraph of Note 4 as to which the date is May 1, 1996 and Note 11 as to which
the date is June 20, 1996, on our review of interim financial information of
Precision Response Corporation for the three month periods ended March 31, 1996
and 1995 is incorporated by reference in this Registration Statement. Pursuant
to Rule 436(c) under the Securities Act of 1933, this report should not be
considered a part of the registration statement prepared or certified by us
within the meaning of Sections 7 and 11 of that Act.
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
Miami, Florida
January 13, 1997
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 11, 1996, except for the second
paragraph of Note 4 as to which the date is May 1, 1996 and paragraphs one and
two of Note 11 as to which the date is June 20, 1996, on our audit of the
financial statements of Precision Response Corporation appearing in the
Registrant's Registration Statement and related Prospectus on Form S-1 (File No.
333-03209). In addition, we consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated March 11, 1996, on our
audit of the financial statement schedule of Precision Response Corporation
appearing in the Registrant's Registration Statement on Form S-1 (File No.
333-03209).
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
Miami, Florida
January 13, 1997
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 17, 1995, except for paragraphs
one and two of Note 11 as to which the date is June 20, 1996, on our audit of
the financial statements of Precision Response Corporation appearing in the
Registrant's Registration Statement and related Prospectus on Form S-1 (File No.
333-03209). In addition, we consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated March 17, 1995 on our
audit of the financial statement schedule of Precision Response Corporation
appearing in the Registrant's Registration Statement on Form S-1 (File No.
333-03209).
/s/ Gurland & Goldberg, P.A.
GURLAND & GOLDBERG, P.A.
Hallandale, Florida
January 13, 1997
