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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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Exigent International, Inc.
(Exact name of registrant as specified in its charter)
Delaware 59-3379927
(State of incorporation) (I.R.S. Employer
Identification No.)
1225 Evans Road, Melbourne, Florida 32904-2314
(Address of principal executive offices and zip code)
Incentive Stock Option Plan 2Q
(Full title of the plan)
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Don F. Riordan, Jr., Secretary
Exigent International, Inc.
1225 Evans Road
Melbourne, Florida 32904-2314
(407) 952-7550
(Name, address and telephone number of agent for service)
Copy to: Ogden Newell & Welch
Attention: Lynn H. Wangerin
1200 One Riverfront Plaza
Louisville, Kentucky 40202
(502) 582-1601
Exhibit Index appears on page 5
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Calculation of Registration Fee
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Proposed Proposed
Title of Amount maximum maximum
Securities to be offering price aggregate Amount of
To be registered registered per share offering price registration fee
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Incentive Stock 200,000 (2) (2) (2)
Options (1)
Common Shares (3) 200,000 $2.4375 $487,500 $148.00
- --------------------------------------------------------------------------------
</TABLE>
(1) The price is estimated solely for purpose of calculating amount of
registration fee which, calculated pursuant to Rule 457(h)(1), is based on
the average of the high and low prices for Common Shares of Exigent
International, on May 30, 1997.
(2) The Incentive Stock Options are registered in the same registration
statement as the Common Shares underlying the options and, therefore, no
separate registration fee is required under Rule 457(h)(2).
(3) These are the Common Shares which will be issued in the event that the
Incentive Stock Options are exercised.
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Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Item 2. Registrant Information and Employee Plan Annual Information.
In accordance with the requirements of Rule 428(b)(1), the information
specified in Items 1 and 2 of Form S-8 will be contained in a document sent or
given to plan participants. This information is not filed as part of this
Registration Statement.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are hereby incorporated by reference, except as
superseded or modified herein:
(a) Registration Statement and all amendments thereto which became
effective on January 30, 1997 on Form S-1 (including the description
of the Common Shares contained therein).
(b) Prospectus dated January 30, 1997.
(c) Form 10-K for the fiscal year ended January 31, 1997.
(d) Form 10-Q for the three months ended April 30, 1997.
(e) Incentive Stock Option Plan 2Q, incorporated in Form 8-K dated June 24,
1997.
All documents filed by Exigent International, Inc. ("Exigent") with the
Securities and Exchange Commission pursuant to Sections 13(a), 13(d), 14 or
15(d) of the Securities Exchange Act of 1934 after the effective date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which registers
all securities then remaining unsold shall be deemed to be incorporated by
reference in this Registration Statement and shall be deemed to be a part hereof
from the date of filing of such documents.
Item 4. Description of Securities.
The Common Shares are registered under Section 12 of the Securities
Exchange Act of 1934.
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Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Officers and directors of Exigent are covered by certain provisions of the
Delaware General Corporation Law and the Certificate of Incorporation and Bylaws
of Exigent, which serve to limit, and, in certain instances, to indemnify them
against, certain liabilities which they may incur in such capacities.
Exigent's Certificate of Incorporation limits the liability of its
directors to Exigent or its shareholders (in their capacity as directors, but
not in their capacity as officers) to the fullest extent permitted by Delaware
law. Specifically, the directors of Exigent will not be personally liable for
monetary damages for breach of director's fiduciary duty as a director, except
for liability (i) for any breach of the director's duty of loyalty to Exigent or
its shareholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) for unlawful
payments of dividends or unlawful stock repurchases or redemptions, or (iv) for
any transaction from which the director derived an improper personal benefit.
Exigent's Certificate of Incorporation provides that Exigent indemnify its
directors or officers or former directors or officers or any person who may have
served at its request as a director or officer of another corporation in which
it owns shares of capital stock or of which it is a creditor against expenses
incurred by them in connection with the defense of any action in which they are
parties by reason of being or having been directors or officers of Exigent, or
of such other corporation, except in relation to matters as to which any such
person is liable for negligence or misconduct in the performance of duty.
Exigent's Bylaws provide that Exigent must indemnify any such person
(other than an action by or in the right of Exigent) if such person acted in
good faith and in a manner reasonably believed to be in or not opposed to the
best interests of Exigent, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the conduct was unlawful. No
indemnification may be made in respect of any matter as to which such person
shall have been adjudged to be liable to Exigent unless and only to the extent
that the court in which such action was brought determines 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 which the court deems proper. Exigent's Bylaws also provide that any
indemnification (unless ordered by a court) may be made by Exigent only as
authorized in the specific case upon a determination that indemnification is
proper in the circumstances because such person has met the applicable standard
of conduct. Such determination must be made (i) by the Board of Directors by a
majority vote of a quorum consisting of directors who were not parties to such
action, (ii) if such a quorum is not obtainable, or, even if obtainable a quorum
of disinterested directors so directs, by independent legal counsel in a written
opinion, or (iii) by the shareholders of Exigent. To the extent, however, that
a director, officer, employee or agent of Exigent has been successful on the
merits or otherwise in
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defense of any action described above, or in the defense of any matter therein,
such person shall be indemnified against expenses (including attorneys' fees)
incurred in connection therewith, without the necessity of authorization in the
specific case. Expenses incurred by a director, officer, employee or agent of
Exigent in defending or investigating a threatened or pending action may be paid
by Exigent in advance of the final disposition of such action upon receipt of an
undertaking by such person to repay such amount if it is ultimately determined
that indemnification is not proper.
The indemnification and advancement of expenses provided by or granted
pursuant to Exigent's Bylaws are not exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be entitled under
any Bylaw, agreement, contract, vote of shareholders or disinterested directors
or otherwise, it being Exigent's policy that indemnification of the persons
specified in the Bylaws shall be made to the fullest extent permitted by law.
The indemnification and advancement of expenses provided by Exigent's Bylaws,
unless otherwise provided when authorized or ratified, continue as to a person
who has ceased to be a director, officer, employee or agent and inure to the
benefit of the heirs, executors and administrators of such person.
Exigent carries directors' and officers' liability insurance.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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<CAPTION>
Exhibit Page
Number Description of Documents Number
------ ------------------------ ------
<S> <C> <C>
4 Incentive Stock Option Plan 2Q of the Registrant, isncorporated N/A
in Form 8-K dated June 24, 1997.
5 Opinion of Counsel, Ogden Newell & Welch 8
23(a) Consent of Hoyman, Dobson & Company, P.A., independent 10
auditors of registrant
23(b) Consent of Ogden Newell & Welch, counsel to registrant (included N/A
in Exhibit 5)
</TABLE>
Item 9. Undertakings.
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: (i) to include any
prospectus required by section 10(a)(3)
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of the Securities Act of 1933; (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; (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 (i) and (ii) do not apply if the registration
statement is on Form S-3 or Form S-8 and the information required to be included
in a post-effective amendment by (i) or (ii) is contained in periodic reports
filed by the Company 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; and
(4) that, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual reports pursuant to section
13(a) or section 15(d) of the Securities Exchange Act of 1934, 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
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 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
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 of 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.
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SIGNATURES
The Registrant. 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 Melbourne, State of Florida on June 23, 1997.
Exigent International, Inc.
By: /s/ Jeffery C. Clift
---------------------------
Jeffrey C. Clift, President
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>
<S> <C>
/s/ Bernard R. Smedley on June 23, 1997
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Bernard R. Smedley, Chief Executive Officer
/s/ Don F. Riordan, Jr. on June 23, 1997
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Don F. Riordan, Jr., Chief Financial Officer
The following are at least a majority of the directors of Exigent International,
Inc.
/s/ Jeffrey C. Clift on June 23, 1997
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Jeffrey C. Clift
/s/ Don F. Riordan, Jr. on June 23, 1997
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Don F. Riordan, Jr.
/s/ Bernard R. Smedley on June 23, 1997
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Bernard R. Smedley
/s/ Daniel J. Stark on June 23, 1997
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Daniel J. Stark
/s/ William K. Presley on June 23, 1997
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William K. Presley
</TABLE>
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
administrator of Incentive Stock Option Plan 2Q has duly caused this
registration statement to be signed on the plan's behalf by the undersigned,
thereunto duly authorized in the City of Melbourne, State of Florida on June 23,
1997.
Incentive Stock Option Plan 2Q of Software Technology, Inc.
By: /s/ William K. Presley
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William K. Presley, Plan Administrator
0094071.02
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Exhibit 5
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[Letterhead of Ogden Newell & Welch]
June 24, 1997
Exigent International, Inc.
1225 Evans Road
Melbourne, Florida 32904-2314
Re: Exigent International, Inc.
Registration Statement on Form S-8
Dear Sirs:
We are acting as counsel for Exigent International, Inc., a Delaware
corporation (the "Company"), in connection with its registration under the
Securities Act of 1933, as amended, of stock option ("Options") which are
proposed to be granted pursuant to the Company's Incentive Stock Option Plan 2Q
(the "Plan"), and pursuant to the Company's registration statement on Form S-8
(the "registration statement") to be filed with the Securities and Exchange
Commission (the "Commission") with respect to the Options.
In rendering this opinion, we have examined instruments, documents and
records which we deemed relevant and necessary for the basis of our opinion
hereinafter expressed. In such examination, we have assumed the following: (a)
the authenticity of original documents and the genuineness of all signatures;
(b) the conformity to the originals of all documents submitted to us as copies;
and (c) the truth, accuracy and completeness of the information, representations
and warranties contained in the documents.
It is our opinion that:
(a) the Options issued pursuant to the Plan will be legally and
validly issued, fully paid and non-assessable; and
(b) the shares to be received upon the proper exercise of the Options
("Option Shares") pursuant to the Plan will have been duly authorized and,
subject to the effectiveness of the registration statement and compliance
with applicable state securities laws, will be
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legally and validly issued, fully paid and non-assessable.
Insofar as this opinion relates to securities to be issued in the future,
we have assumed that all applicable laws, rules and regulations in effect at the
time of such issuance shall be the same as such laws, rules and regulations are
in effect as of the date hereof.
It should be noted that nothing in this opinion is intended to apply to any
disposition of the Options or the Option Shares which any participant in the
Plan may propose to make.
This opinion is furnished to you in connection with the filing of the
registration statement and is not to be used, circulated, quoted or otherwise
relied upon for any other purpose, except as expressly provided in the preceding
paragraph, without our express written consent, and no party other than you is
entitled to rely upon it. This opinion is rendered to you as of the date
hereof, and we undertake no obligation to advise you of any change, whether
legal or factual.
We consent to the filing of this opinion as an exhibit to the registration
statement and as an exhibit to any filing made by the Company with respect to
the Options or the Option Shares under the Securities or "Blue Sky" laws of any
state or jurisdiction.
Very truly yours,
/s/ Ogden Newell & Welch
Ogden Newell & Welch
0096401.01
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EXHIBIT 23(a)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the registration statement
of Exigent International, Inc. on Form S-8 of our report, dated March 26, 1997,
on our audit of the consolidated financial statements of Exigent International,
Inc. as of January 31, 1997 and 1996 and for the years ended January 31, 1997,
1996 and 1995, which report is included in the company's Annual Report on Form
10-K for the fiscal year ended January 31, 1997. We also consent to the
incorporation by reference in the registration statement of Exigent
International, Inc. on Form S-8 of our reports, dated August 15, 1996 and March
31, 1995, on our audit of the financial statements of Software Technology, Inc.
as of January 31, 1996, 1995 and 1994 and for the years ended January 31, 1996,
1995 and 1994, which reports are included in the company's registration
statement on Form S-1.
Dated: June 23, 1997
Hoyman, Dobson & Company, P.A.
By: /s/ Charles Hoyman, Jr.
--------------------------
Title: President
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0096402.01
