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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 3, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PHOENIX INTERNATIONAL LTD., INC.
(Exact name of registrant as specified in its charter)
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<S> <C>
FLORIDA 59-3171810
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
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500 INTERNATIONAL PARKWAY, HEATHROW, FLORIDA 32746
(Address of principal executive offices)
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PHOENIX INTERNATIONAL LTD., INC. 1995 EMPLOYEE STOCK OPTION PLAN,
EFFECTIVE AS OF OCTOBER 21, 1995
STOCK OPTION AGREEMENT WITH BRIAN LEIGH THOMAS
STOCK OPTION AGREEMENT WITH ELIZABETH CAROLYN SWANSTON
(Full title of the Plans)
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Copies to:
BAHRAM YUSEFZADEH GLENN W. STURM, ESQ.
CHIEF EXECUTIVE OFFICER NELSON MULLINS RILEY & SCARBOROUGH, L.L.P.
PHOENIX INTERNATIONAL LTD., INC. FIRST UNION PLAZA, SUITE 1400
500 INTERNATIONAL PARKWAY 999 PEACHTREE STREET
HEATHROW, FLORIDA 32746 ATLANTA, GEORGIA 30309
(407) 548-5100 (404) 817-6000
(407) 548-5296 (FAX) (404) 817-6050 (FAX)
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED SHARE PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, $0.01 par value 250,000(1) $22.50 (3) $5,625,000 (3) $1,704.55
- ----------------------------------------------------------------------------------------------------------------
Common Stock, $0.01 par value 150,000(2) $21.125 (4) $3,168,750 (4) $ 960.23
- ----------------------------------------------------------------------------------------------------------------
Total 400,000 -- $8,793,750 $2,664.78
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(1) Represents additional shares of the Company's Common Stock issuable
pursuant to the same employee benefit plan for which Registration Statement
No. 333-19121 is currently effective. Accordingly, pursuant to Instruction
E on Form S-8, the registration fee is being paid with respect to the
additional securities only.
(2) Represents shares subject to options granted pursuant to an employee
benefit plan as defined in Rule 405.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457 (c) and (h) on the basis of the average of the high
and low prices of the Company's Common Stock on June 30, 1997, as reported
by the National Association of Securities Dealer's automated quotation
system.
(4) In accordance with Rule 457(h), the registration fee is based upon the
price at which the options may be exercised.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
The following documents filed by Phoenix International Ltd., Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated by reference in this Registration Statement as of their respective
dates:
(a) the Company's Annual Report on Form 10-K for the year ended December
31, 1996;
(b) all other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")
since December 31, 1996; and
(c) the description of the Company's common stock, par value $0.01 per
share (the "Common Stock"), contained in the Company's Registration
Statement on Form 8-A, declared effective by the Commission on July
1, 1996, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, after the date of this
Registration Statement, and prior to the filing of a post-effective amendment
that indicate 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 part hereof from the date of
filing of such documents. In addition, pursuant to General Instruction E to
Form S-8, the contents of the Company's Registration Statement on Form S-8
(File Number 333-19121) are incorporated herein by reference.
ITEM 4. Description of Securities.
Not applicable.
ITEM 5. Interests of Named Experts and Counsel.
The legality of the issuance of the securities being registered hereby has
been passed upon by the law firm of Nelson Mullins Riley & Scarborough, L.L.P.,
counsel for the Company. As of July 1, 1997, Glenn W. Sturm, a partner of
Nelson Mullins Riley & Scarborough, L.L.P., beneficially owns 194,232 shares of
Common Stock and serves as secretary, general counsel, director and a member of
the Audit Committee of the Company.
2
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ITEM 6. Indemnification of Directors and Officers.
Article 9 of the Company's Amended and Restated Bylaws (the "Bylaws")
requires the Company, to the fullest extent permitted or required by the
Florida Business Corporation Act (the "Florida Act"), to (i) indemnify its
directors against any and all liabilities and (ii) advance any and all
reasonable expenses, incurred in any proceeding to which any such director is a
party or in which such director is deposed or called to testify as a witness
because he or she is or was a director of the Company. Generally, the Florida
Act permits indemnification of a director upon a determination that he or she
acted in good faith and in a manner he or she 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 or her
conduct was unlawful. The right to indemnification granted in the Bylaws is
not exclusive of any other rights to indemnification against liabilities or the
advancement of expenses to which a director may be entitled under any written
agreement, Board resolution, vote of shareholders, the Florida Act or
otherwise.
The Company has entered into agreements with each of its current directors
and intends to enter into agreements with its current executive officers
pursuant to which it is obligated to indemnify those persons to the fullest
extent authorized by law and to advance payments to cover defense costs against
an unsecured obligation to repay such advances if it is ultimately determined
that the recipient of the advance is not entitled to indemnification. The
indemnification agreements provide that no indemnification or advancement of
expenses shall be made (a) if a 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 criminal law (unless the indemnitee had
reasonable cause to believe that his actions were lawful); (ii) a transaction
from which the indemnitee derived an improper personal benefit; (iii) an
unlawful distribution or dividend under the Florida Act; or (iv) willful
misconduct or a conscious disregard for the just interests of the Company in a
derivative or shareholder action; (b) for liability under Section 16(b) of the
Exchange Act; or (c) if a final decision by a court having jurisdiction in the
matter determines that indemnification is not lawful.
At present, the Company is not aware of any pending or threatened
litigation or proceeding involving a director, officer, employee or agent of
the Company in which indemnification would be required or permitted under the
Bylaws or the Florida Act.
The Company has purchased a standard policy of directors' and officers'
liability insurance covering directors and officers of the Company with respect
to liabilities incurred as a result of their service in such capacities.
ITEM 7. Exemption from Registration Claimed.
Not applicable.
ITEM 8. Exhibits.
4.1 Second Amendment to the Phoenix International Ltd., Inc. 1995
Employee Stock Option Plan, effective as of October 21, 1995.
3
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5.1 Opinion of Nelson Mullins Riley & Scarborough, L.L.P.
23.1 Consent of Independent Auditors.
23.2 Consent of Nelson Mullins Riley & Scarborough, L.L.P. (included as
part of Exhibit 5.1).
24.1 Power of Attorney (contained on signature page of this filing).
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 of 1933 (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 aggregate, represent a fundamental change in the
information set forth in this 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 a 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 this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that the undertakings set forth in paragraph (i)
and (ii) above 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 Company pursuant to Section 13(a) or 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 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
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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 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.
Insofar as indemnification for liabilities arising under the Securities
Act 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 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 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 Securities Act and will be governed by the final
adjudication of such issue.
5
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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 Heathrow, State of Florida, on July 3, 1997.
PHOENIX INTERNATIONAL LTD., INC.
By: /s/ Bahram Yusefzadeh
------------------------------------
Bahram Yusefzadeh
Chief Executive Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Bahram Yusefzadeh, as their 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) 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 attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully and to
all intents and purposes as he might or could do in person, hereby ratifying
and confirming all which said attorney-in-fact and agent, or his substitute or
substitutes, 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 on July 3,
1997, in the capacities and on the dates indicated.
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SIGNATURE CAPACITY
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/s/ Bahram Yusefzadeh Chairman of the Board and Chief Executive
- --------------------------------------------- Officer (principal executive officer)
Bahram Yusefzadeh
/s/ Ralph Reichard Chief Operating Officer, President and Director
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Ralph Reichard
/s/ Clay E. Scarborough Chief Financial Officer (principal financial
- --------------------------------------------- and accounting officer)
Clay E. Scarborough
/s/ Ruann F. Ernst Director
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Ruann F. Ernst
/s/ Ronald E. Fenton Director
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Ronald E. Fenton
/s/ William C. Hess Director
- ---------------------------------------------
William C. Hess
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SIGNATURE CAPACITY
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/s/ James C. Holly Director
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James C. Holly
/s/ Paul A. Jones Director
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Paul A. Jones
/s/ J. Michael Murphy Director
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J. Michael Murphy
/s/ Glenn W. Sturm Secretary and Director
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Glenn W. Sturm
/s/ O. Jay Tomson Director
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O. Jay Tomson
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EXHIBIT INDEX
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Exhibit
Number Exhibit Page No.
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4.1 Second Amendment to the Phoenix International Ltd., Inc. 1995 Employee Stock Option
Plan, effective as of October 21, 1995 . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.1 Opinion of Nelson Mullins Riley & Scarborough, L.L.P. . . . . . . . . . . . . . . . . . . . . .
23.1 Consent of Independent Auditors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
23.2 Consent of Nelson Mullins Riley & Scarborough, L.L.P. (included as part
of Exhibit 5.1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
24.1 Power of Attorney (contained on signature page of this filing) . . . . . . . . . . . . . . . .
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EXHIBIT 4.1
SECOND AMENDMENT TO THE
PHOENIX INTERNATIONAL LTD., INC.
1995 STOCK OPTION PLAN, EFFECTIVE AS OF OCTOBER 21, 1995
WHEREAS, the Board of Directors of Phoenix International Ltd., Inc., a
Florida corporation (the "Company"), adopted the Phoenix International Ltd.,
Inc. 1995 Stock Option Plan (the "October Plan"), effective as of October 21,
1995, and recommended that it be approved by the shareholders; and
WHEREAS, the shareholders adopted the October Plan pursuant to written
consents dated on or before December 31, 1995; and
WHEREAS, the purpose of the October Plan is to advance the interests of
the Company, its subsidiaries and its shareholders by affording certain
employees of the Company and its subsidiaries and other key persons an
opportunity to acquire or increase their proprietary interests in the Company;
and
WHEREAS, effective May 24, 1996, the Board of Directors approved and the
shareholders ratified certain amendments to the October Plan (the "First
Amendment"); and
WHEREAS, on January 24, 1997, the Board of Directors approved the
following further amendment to the October Plan and recommended that such
amendments be approved by the shareholders;
NOW, THEREFORE, the October Plan is hereby amended as follows:
1. Defined Terms. Initially capitalized terms used in this Amendment,
which are not otherwise defined by this Amendment, are used with the same
meaning ascribed to such terms in the October Plan.
2. Amendment.
a. The first paragraph of Section 4.1 of the October Plan is
amended to read as follows:
4.1 Limitations. Subject to any antidilution adjustment
pursuant to the provisions of Section 4.2 hereof, the maximum number
of shares of Stock that may be issued hereunder shall be 500,000.
Any or all shares of Stock subject to the Plan may be issued in any
combination of Incentive Stock Options, non-Incentive Stock Options
or Restricted Stock, and the amount of Stock subject to the Plan may
be increased from time to time in accordance with Article VIII,
provided that the total number of shares of Stock issuable pursuant
to Incentive Stock Options may not be increased to more than 500,000
(other than pursuant to antidilution adjustments) without
shareholder approval. Shares subject to an Option or issued as an
Award may be either authorized and unissued shares or shares issued
and later acquired by the Company. The shares covered by any
unexercised portion of an Option that has terminated for any reason
(except as set forth in the following paragraph), or any forfeited
portion of an Award, may again be optioned or awarded under the
Plan, and such shares shall not be considered as having been
optioned or issued in computing the number of shares of Stock
remaining available for option or award hereunder.
<PAGE> 2
3. Effectiveness. This Amendment shall not become effective unless and
until such provisions are approved by at least a majority vote of the holders
of the outstanding capital stock of the Company present, or represented, and
entitled to vote on such matter at a meeting of shareholders duly called and
convened within one year following the date hereof.
4. Approval. Except as hereinabove amended and modified, the October
Plan is approved, ratified and affirmed without further modification or
amendment.
IN WITNESS WHEREOF, the Company has caused this Amendment to be executed
as of January 24, 1997, in accordance with the authority provided by the Board
of Directors.
PHOENIX INTERNATIONAL LTD., INC.
By: /s/ Bahram Yusefzadeh
------------------------------
Name: Bahram Yusefzadeh
Title: Chief Executive Officer
2
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EXHIBIT 5.1
[NELSON MULLINS RILEY & SCARBOROUGH, L.L.P. LETTERHEAD]
July 3, 1997
Gentlemen:
We have acted as counsel to Phoenix International Ltd., Inc. (the
"Company") in connection with the filing of a Registration Statement on Form
S-8 (the "Registration Statement") under the Securities Act of 1933, covering
the offering of up to 250,000 shares (the "Plan Shares") of the Company's
Common Stock, $.01 par value per share (the "Common Stock"), that may be issued
pursuant to the Phoenix International Ltd., Inc. 1995 Employee Stock Option
Plan, effective as of October 21, 1995 (the "Plan") and up to an aggregate of
150,000 shares (together with the Plan Shares, the "Shares") of Common Stock
which may be issued pursuant to the Company's stock option agreements with
Brian L. Thomas and Elizabeth C. Swanston (the "Option Agreements"). In
connection therewith, we have examined such corporate records, certificates of
public officials and other documents and records as we have considered
necessary or proper for the purpose of this opinion.
This opinion is limited by, and is in accordance with, the January 1,
1992, edition of the Interpretive Standards applicable to Legal Opinions to
Third Parties in Corporate Transactions adopted by the Legal Opinion Committee
of the Corporate and Banking Law Section of the State Bar of Georgia.
Based on the foregoing, and having regard to legal considerations
which we deem relevant, we are of the opinion that the Shares covered by the
Registration Statement, which may be issued pursuant to the Plan and the Option
Agreements, will, when issued in accordance with the Plan and the Option
Agreements, be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to all references to our firm included in or made a
part of the Registration Statement.
Very truly yours,
NELSON MULLINS RILEY & SCARBOROUGH, L.L.P.
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) dated July 3, 1997, pertaining to the Phoenix International Ltd.,
Inc. 1995 Employee Stock Option Plan, Effective as of October 21, 1995, the
Stock Option Agreement with Brian Leigh Thomas, and the Stock Option Agreement
with Elizabeth Carolyn Swanston, of our report dated January 31, 1997, with
respect to the consolidated financial statements of Phoenix International Ltd.,
Inc. included in its Annual Report (Form 10-K) for the year ended December 31,
1996, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Atlanta, Georgia
July 1, 1997
