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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 3Q
(Full title of the plan)
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Don F. Riordan, Jr., Treasurer
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
1700 Citizens Plaza
500 West Jefferson Street
Louisville, Kentucky 40202-2874
(502) 582-1601
Exhibit Index appears on page 5
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<TABLE>
<CAPTION>
Calculation of Registration Fee
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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
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<S> <C> <C> <C> <C>
Common Shares 240,000 $2.875 $690,000 $204.00
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</TABLE>
(1) These are Common Shares which will be issued in the event that stock
options under Incentive Stock Option Plan 3Q are exercised. The exercise
price of the option is the fair market value of the stock on the date of
grant of the option. The offering price and registration fee have been
calculated under Rule 457(h)(1) as of December 29, 1997.
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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 as described below:
(a) Registration Statements and all amendments thereto which became
effective on January 30, 1997 on Form S-1 under the Securities Act of
1933 and Form 8-A under the Securities Exchange Act of 1934 (including
the description of the Common Shares contained therein).
(b) Form 10-K for the fiscal year ended January 31, 1997.
(c) Form 10-Q for the three months ended April 30, 1997.
(d) Form 10-Q for the six months ended July 31, 1997.
(e) Form 10-Q for the nine months ended October 31, 1997.
(f) Form 8-K dated June 24, 1997.
(g) Form 8-K dated October 27, 1997.
(h) Incentive Stock Option Plan 3Q, filed as an exhibit to Form 8-K filed
the same day as this Form S-8.
All documents filed by Exigent International, Inc. ("Exigent") with the
Securities and Exchange Commission pursuant to Sections 13(a), 13(d), 14 and
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
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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.
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, 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, former directors or officers, and 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.
Except in an action by or in the right of Exigent, Exigent's Bylaws provide
that Exigent indemnify directors and officers (as well as certain other persons)
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
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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
an indemnified person has been successful on the merits or otherwise in 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 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 or officer 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.
<TABLE>
<CAPTION>
Exhibit Page
Number Description of Documents Number
- ------ ------------------------ ------
<S> <C> <C>
4 Incentive Stock Option Plan 3Q of Exigent, incorporated in Form N/A
8-K filed the same day as this Form S-8
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 N/A
(included in Exhibit 5)
</TABLE>
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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) 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 with or furnished to the Securities and
Exchange 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; 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
December 31, 1997.
Exigent International, Inc.
By: /s/ Bernard R. Smedley
----------------------
Bernard R. Smedley
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.
/s/ Bernard R. Smedley on December 31, 1997
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Bernard R. Smedley, Chief Executive Officer
/s/ Don F. Riordan, Jr. on December 31, 1997
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Don F. Riordan, Jr., Chief Financial Officer and Principal Accounting Officer
The following are at least a majority of the directors of Exigent International,
Inc.
/s/ William K. Presley on December 31, 1997
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William K. Presley
/s/ Don F. Riordan, Jr. on December 31, 1997
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Don F. Riordan, Jr.
/s/ Bernard R. Smedley on December 31, 1997
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Bernard R. Smedley
/s/ Daniel J. Stark on December 31, 1997
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Daniel J. Stark
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
administrator of Incentive Stock Option Plan 3Q 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 December
31, 1997.
Incentive Stock Option Plan 3Q of Exigent International, Inc.
By: /s/ Bernard R. Smedley
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Bernard R. Smedley, Plan Administrator
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Exhibit 5
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[Letterhead of Ogden Newell & Welch]
December 31, 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 Common Shares which may be issued upon
the exercise of stock options granted pursuant to the Company's Incentive Stock
Option Plan 3Q (Non-Qualified) (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 such shares.
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 the shares to be received upon the proper exercise
of the options 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 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.
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It should be noted that nothing in this opinion is intended to apply to any
disposition of the 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 shares under the securities or "Blue Sky" laws of any state or jurisdiction.
Very truly yours,
/s/ Ogden Newell & Welch
Ogden Newell & Welch
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Exhibit 23(a)
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CONSENT OF CERTIFIED PUBLIC ACCOUNTANTS
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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 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: December 30, 1997 Hoyman, Dobson & Company, P.A.
By: \s\ Charles Hoyman, Jr.
--------------------------
Title: President
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