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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 24, 1998
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)
FLORIDA 59-3171810
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
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
PHOENIX INTERNATIONAL LTD., INC. 1996 DIRECTOR STOCK OPTION PLAN,
EFFECTIVE AS OF MAY 24, 1996
PHOENIX INTERNATIONAL LTD., INC. 1998 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plans)
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BAHRAM YUSEFZADEH Copies to:
CHIEF EXECUTIVE OFFICER GLENN W. STURM, ESQ.
PHOENIX INTERNATIONAL LTD., INC. NELSON MULLINS RILEY & SCARBOROUGH, L.L.P.
500 INTERNATIONAL PARKWAY FIRST UNION PLAZA, SUITE 1400
HEATHROW, FLORIDA 32746 999 PEACHTREE STREET
(407) 548-5100 ATLANTA, GEORGIA 30309
(407) 548-5296 (FAX) (404) 817-6000
(Name, address, including (404) 817-6050 (FAX)
zip code, and telephone number,
including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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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
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par value 300,000(1) $16.50(2) $4,950,000(2) $1,460.25
- ---------------------------------------------------------------------------------------------------------------
Common Stock, $0.01 par value 76,500(1) $16.50(2) $1,262,250(2) $ 372.36
- ---------------------------------------------------------------------------------------------------------------
Common Stock, $0.01 par value 150,000 $16.50(2) $2,475,000(2) $ 730.13
- ---------------------------------------------------------------------------------------------------------------
Total 526,500 $8,687,250(2) $2,562.74
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</TABLE>
(1) Represents additional shares of the Company's Common Stock issuable
pursuant to the same employee benefit plan for which Registration
Statement Nos. 333-19121 and 333-30797 are 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) 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 19, 1998, as
reported by the National Association of Securities Dealer's automated
quotation system.
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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, 1997;
(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, 1997; 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 Statements on Form S-8 (File Numbers
333-19121 and 333-30797) are incorporated herein by reference. All references to
share numbers in this Registration Statement reflect a 3-for-2 stock split of
the Company's Common Stock effected on May 18, 1998.
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 May 31, 1998, Glenn W. Sturm, a partner of Nelson
Mullins Riley & Scarborough, L.L.P., beneficially owns 149,414 shares of Common
Stock and serves as secretary, general counsel, director and a member of the
Audit Committee and Compensation and Stock Option Committee of the Company.
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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 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 Third Amendment to the Phoenix International Ltd., Inc. 1995 Employee
Stock Option Plan, effective as of October 21, 1995 (incorporated by
reference to Exhibit A of the Company's
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definitive proxy statement on Schedule 14A for its 1998 annual meeting
of shareholders (the "1998 Proxy Statement"), File No. 0-20937).
4.2 First Amendment to the Phoenix International Ltd., Inc. 1996 Director
Stock Option Plan, effective as of May 24, 1996 (incorporated by
reference to Exhibit B of the 1998 Proxy Statement).
4.3 Phoenix International Ltd., Inc. 1998 Employee Stock Purchase Plan
(incorporated by reference to Exhibit C of the 1998 Proxy Statement).
5.1 Opinion of Nelson Mullins Riley & Scarborough, L.L.P.
23.1 Consent of Ernst & Young LLP.
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
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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.
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.
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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 June 22, 1998.
PHOENIX INTERNATIONAL LTD., INC.
By: /s/ Bahram Yusefzadeh
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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 June 22,
1998, in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY
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<S> <C>
/s/ Bahram Yusefzadeh Chairman of the Board and Chief Executive
- ------------------------------ Officer (principal executive officer)
Bahram Yusefzadeh
/s/ Raju M. Shivdasani Chief Operating Officer, President and
- ------------------------------ Director
Raju M. Shivdasani
/s/ Clay E. Scarborough Chief Financial Officer (principal financial
- ------------------------------ and accounting officer)
Clay E. Scarborough
/s/ Ruann F. Ernst
- ------------------------------
Ruann F. Ernst Director
/s/ Ronald E. Fenton Director
- ------------------------------
Ronald E. Fenton
/s/ William C. Hess Director
- ------------------------------
William C. Hess
/s/ James C. Holly Director
- ------------------------------
James C. Holly
/s/ Paul A. Jones Director
- ------------------------------
Paul A. Jones
/s/ J. Michael Murphy Director
- ------------------------------
J. Michael Murphy
/s/ Glenn W. Sturm Secretary and Director
- ------------------------------
Glenn W. Sturm
/s/ O. Jay Tomson Director
- ------------------------------
O. Jay Tomson
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Exhibit
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<S> <C>
4.1 Third Amendment to the Phoenix International Ltd., Inc. 1995 Employee
Stock Option Plan, effective as of October 21, 1995 (incorporated by
reference to Exhibit A of the Company's definitive proxy statement on
Schedule 14A for its 1998 annual meeting of shareholders (the "1998
Proxy Statement), File No. 0-20937).
4.2 First Amendment to the Phoenix International Ltd., Inc. 1996 Director
Stock Option Plan, effective as of May 24, 1996 (incorporated by
reference to Exhibit B of the 1998 Proxy Statement).
4.3 Phoenix International Ltd., Inc. 1998 Employee Stock Purchase Plan
(incorporated by referenced to Exhibit C of the 1998 Proxy Statement).
5.1 Opinion of Nelson Mullins Riley & Scarborough, L.L.P.
23.1 Consent of Ernst & Young LLP
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)
</TABLE>
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EXHIBIT 5.1
[NELSON MULLINS RILEY & SCARBOROUGH, L.L.P. LETTERHEAD]
June 22, 1998
Phoenix International Ltd., Inc.
500 International Parkway
Heathrow, Florida 32746
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 300,000 shares (the "Plan Shares") of the Company's Common
Stock, $.01 par value per share (the "Common Stock"), which may be issued
pursuant to the Phoenix International Ltd., Inc. 1995 Employee Stock Option
Plan, effective as of October 21, 1995, up to 76,500 shares of Common Stock
which may be issued pursuant to the Phoenix International Ltd., Inc. 1996
Director Stock Option Plan, effective as of May 24, 1996 and up to 150,000
shares of Common Stock which may be issued pursuant to the Phoenix International
Ltd., Inc. 1998 Employee Stock Purchase Plan (collectively, the "Shares"). 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 plans specified
therein, will, when issued in accordance with the plans 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) pertaining to the Phoenix International Ltd., Inc. 1995 Employee Stock
Option Plan, effective as of October 21, 1995, the Phoenix International Ltd.,
Inc. 1996 Director Stock Option Plan, effective as of May 24, 1996 and the
Phoenix International Ltd., Inc. 1998 Employee Stock Purchase Plan of our report
dated January 28, 1998, with respect to the consolidated financial statements of
Phoenix International Ltd., Inc. incorporated by reference in its Annual Report
on Form 10-K for the year ended December 31, 1997, filed with Securities and
Exchange Commission.
ERNST & YOUNG LLP
Atlanta, Georgia
June 18, 1998
