As filed with the Securities and Exchange Commission on April __, 2000.
Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
Registration Statement Under
the Securities Act of 1933
APROPOS TECHNOLOGY, INC.
(Exact Name of Registrant as Specified in its Charter)
ILLINOIS 36-3644751
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
ONE TOWER LANE, 28TH FLOOR
OAKBROOK TERRACE, ILLINOIS 60181
(Address of Principal Executive Offices)
2000 Omnibus Incentive Plan
Employee Stock Purchase Plan of 2000
(Full Title of the Plans)
KEVIN G. KERNS
CHIEF EXECUTIVE OFFICER AND PRESIDENT
ONE TOWER LANE, 28TH FLOOR
OAKBROOK TERRACE, ILLINOIS 60181
(Name and Address of Agent For Service)
(630) 472-9600
(Telephone number, including area code, of agent for service)
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities to be Amount to be Offering Price Per Aggregate Offering Amount of
Registered Registered(1) Share(2) Price Registration Fee
<S> <C> <C> <C> <C>
Common Shares (par 5,600,000 $30 168,000,000 $44,352
value $.01 per share)
- -------------------------
1 Pursuant to Rule 416(a) under the Securities Act of 1933, this registration
statement also covers an indeterminate number of additional common shares
which may be issued if the anti-dilution adjustment provisions of the plans
become operative.
2 Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) and (h) under the Securities Act of 1933 on the
basis of the average high and low prices of the Common Shares as reported
on the Nasdaq National Market System on March 30, 2000.
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents are incorporated by reference into
this registration statement:
(a) The latest prospectus of Apropos Technology, Inc. (the
"Company") filed by the Company with the Securities and Exchange
Commission (the "Commission") on February 17, 2000, pursuant to Rule
424(b) under the Securities Act of 1933, as amended (the "Securities
Act").
(b) The description of the Company's Common Shares is
contained in the Company's Registration Statement on Form 8-A, as
amended, filed with the Commission pursuant to Section 12 of the
Securities Exchange Act of 1934 Act (the "1934 Act").
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act, prior to the filing of a
post-effective amendment which indicates 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 a part
hereof from the date of filing of such documents (such documents, and the
documents enumerated above, being hereinafter referred to as "Incorporated
Documents"); provided, however, that the documents enumerated above or
subsequently filed by the registrant pursuant to Section 13(a), 13(c), 14 and
15(d) of the 1934 Act in each year during which the offering made by this
registration statement is in effect prior to the filing with the Commission of
the registrant's Annual Report on Form 10-K covering such year shall not be
Incorporated Documents or be incorporated by reference in this registration
statement or be a part hereof from and after the filing of such Annual Report on
Form 10-K.
Any statement contained in an Incorporated Document 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 Incorporated Document modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this registration statement.
Item 4. Description of Securities.
-------------------------
The securities to be offered are registered under Section
12(g) of the 1934 Act.
Item 5. Interest of Named Experts and Counsel.
-------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
The Company is incorporated under the laws of the State of
Illinois. Section 8.75 of the Illinois Business Corporation Act provides
generally that an Illinois corporation may indemnify its directors and officers
against (1) expenses, including attorneys' fees, in the case of actions by or in
the right of the corporation or (2) against expenses, including attorneys' fees,
judgments, fines and amounts paid in settlement in all other cases, actually and
reasonably incurred by them in connection with any action, suit, or proceeding
if, in connection with the matters in issue, they acted in good faith and in a
manner they reasonably believed to be in, or not opposed to, the best interests
of the corporation and, in connection with any criminal suit or proceeding, if
in connection with the matters in issue, they had no reasonable cause to believe
their conduct was unlawful. Section 8.75 further permits an Illinois corporation
to grant to its directors and officers additional rights of indemnification
through bylaw provisions, agreements, votes of shareholders or disinterested
directors, or otherwise. An Illinois corporation may also purchase indemnity
insurance on behalf of such indemnifiable persons and to advance to such
indemnifiable
<PAGE>
persons expenses incurred in defending a suit or proceeding upon receipt of an
undertaking by such persons to repay such amount if it is ultimately determined
that such person is not entitled to be indemnified by the Company in accordance
with Section 8.75.
The Company's amended and restated articles of incorporation
provide that the Company's directors shall not be personally liable to the
Company or the shareholders for monetary damages for breach of fiduciary duty as
a director, except for (1) for any breach of the director's duty of loyalty to
the Company, (2) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (3) under Section 8.65 of
the Illinois Business Corporation Act, as the same exists or hereafter may be
amended or (4) for any transaction from which the director derived an improper
benefit. The Company's amended and restated articles of incorporation also
provide that if the Illinois Business Corporation Act is amended to authorize
the further elimination or limitation of the liability of directors, then the
liability of the directors shall be eliminated or limited to the full extent
authorized by the Illinois Business Corporation Act as amended.
The Company's amended and restated bylaws provide that the
Company shall indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, other than an action
by or in the right of the corporation, by reason of the fact that he is or was
one of the Company's directors or officers, or is or was serving at the request
of such corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses, including attorneys' fees, judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in and not opposed to the Company's
best interests, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. Such person is also
entitled to indemnification in connection with an action or suit by or in the
right of the Company against expenses, including attorneys' fees actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit, if such person acted in good faith and in a manner he or
she reasonably believed to be in, or not opposed to, the Company's best
interests provided that no such indemnification may be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Company unless and only to the extent that the court in which such
action or suit was brought shall determine that, despite the adjudication of
liability but in consideration of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such expenses which the court
shall deem proper.
In addition, all of the Company's directors and officers are
covered by insurance policies maintained by the Company against certain
liabilities for actions taken in their capacities as such, including liabilities
under the Securities Act.
The Company has entered into agreements to indemnify the
Company's directors and some of the Company's executive officers, in addition to
the indemnification provided for in the Company's amended and restated bylaws.
These agreements, among other things, will indemnify the Company's directors and
such executive 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
Company or any third person, and liabilities of any type whatsoever, including,
but not limited to, judgments, fines and settlement fees, 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 or officer or
as a director, officer, employee or other agent of any of the Company's
subsidiaries or any other company or enterprise to which the person provides
services at the Company's request if such director or officer acted in good
faith and in a manner he or she reasonably believed to be in, or not opposed to,
the Company's best interests and, with respect to any criminal action or
proceeding, if he or she had no reasonable cause to believe his or her conduct
was unlawful. The Company believes that these provisions and agreements are
necessary to attract and retain talented and experienced directors and officers.
<PAGE>
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
--------
Reference is made to the Exhibit Index.
Item 9. Undertakings.
------------
The 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 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.
(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) That, for the purposes of determining any liability under
the Act, each filing of the registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the 1934 Act (and where applicable each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the 1934 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.
(5) Insofar as indemnification for liabilities arising under
the Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described in Item 6 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 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 and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the undersigned 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 Oakbrook Terrace, State of Illinois,
on the 30th day of March, 2000.
APROPOS TECHNOLOGY, INC.
By /s/ Kevin G. Kerns
------------------------
Kevin G. Kerns
Chief Executive Officer and President
POWER OF ATTORNEY
We, the undersigned officers and directors of Apropos
Technology, Inc., hereby severally constitute Kevin G. Kerns and Michael J.
Profita, and each of them singly, our true and lawful attorneys with full power
to them, and each of them singly, to sign for us and in our names in the
capacities indicated below, the Registration Statement on Form S-8 filed
herewith and any and all amendments (including post-effective amendments) to
said Registration Statement, and generally to do all such things in our name and
behalf in the capacities indicated below to enable Apropos Technology, Inc. to
comply with the provisions of the Securities Act of 1933, as amended, and all
requirements of the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by our said attorneys, or any of
them, to said Registration Statement and any and all amendments thereto.
Pursuant to the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities indicated
on the 30th day of March, 2000.
Signature Title
/s/ Kevin G. Kerns Director, Chief Executive Officer and
------------------------------- President
Kevin G. Kerns
/s/ Michael J. Profita Chief Financial Officer (Principal
-------------------------------- Financial and Accounting Officer)
Michael J. Profita
/s/ Patrick K. Brady Director
--------------------------------
Patrick K. Brady
/s/ Keith L. Crandell Director
--------------------------------
Keith L. Crandell
/s/ Ian M. Larkin Director
--------------------------------
Ian M. Larkin
/s/ Maurice A. Cox, Jr. Director
--------------------------------
Maurice A. Cox, Jr.
/s/ George B. Koch Director
--------------------------------
George B. Koch
<PAGE>
EXHIBIT INDEX
Exhibit Number Description
- -------------- -----------
5 Opinion of McDermott, Will & Emery (including consent)
23.1 Consent of Ernst & Young LLP
McDermott, Will & Emery
227 West Monroe Street, Suite 3100
Chicago, Illinois 60606-5096
312-372-2000
March 30, 2000
Board of Directors
Apropos Technology, Inc.
One Tower Lane, 28th Floor
Oakbrook Terrace, Illinois 60181
Re: Registration Statement on Form S-8; 5,600,000 Common Shares
to be issued pursuant to Apropos Technology, Inc. 2000 Omnibus
Incentive Plan and Employee Stock Purchase Plan of 2000
Gentlemen:
You have requested our opinion in connection with the above-referenced
Registration Statement on Form S-8 (the "Registration Statement") of Apropos
Technology (the "Company"), to be filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, to register 5,600,000
Common Shares of the Company, $.01 par value (the "Common Shares"),which may be
issued pursuant to the 2000 Omnibus Incentive Plan and the Employee Stock
Purchase Plan of 2000 (together the "Plans").
We have examined or considered:
1. A copy of the Company's Amended and Restated Articles
of Incorporation.
2. The By-Laws of the Company.
3. Copies of resolutions duly adopted by the Board of
Directors.
In addition to the examination outlined above, we have conferred with
various officers of the Company and have ascertained or verified, to our
satisfaction, such additional facts as we deemed necessary or appropriate for
the purposes of this opinion. In our examination, we have assumed the
authenticity of all documents submitted to us as originals, the conformity to
the original documents of all documents submitted to us as copies, the
genuineness of all signatures on documents reviewed by us and the legal capacity
of natural persons.
Based on the foregoing, we are of the opinion that all corporate
proceedings necessary for the authorization, issuance and delivery of the Common
Shares under the Plans have been duly taken and upon acquisition pursuant to the
terms of the Plan, the Common Shares will be validly issued, fully paid and
nonassessable. Members of our firm are admitted to the practice of law in the
State of Illinois and we express no opinion as to the laws of any jurisdiction
other than the laws of the State of Illinois and the laws of the United Stated
of America. This opinion
<PAGE>
is furnished to you solely for your benefit in connection with the filing of the
Registration Statement and is not to be used, circulated, quoted or otherwise
referred to for any other purpose without our prior written consent.
Notwithstanding the foregoing, we hereby consent to the references to our firm
in the Registration Statement and to the filing of this opinion by the Company
as an Exhibit to the Registration Statement. In giving this consent, we do not
hereby admit that we come within the category of persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the rules
and regulations of the Securities and Exchange Commission thereunder.
/s/ McDERMOTT, WILL & EMERY
Exhibit 23.1
Consent of Independent Certified Public Accountants
We consent to the incorporation by reference in the
Registration Statement (Form S-8) of Apropos Technology, Inc., pertaining to the
2000 Omnibus Incentive Plan and the Employee Stock Purchase Plan of 2000, of our
reports dated January 13, 2000, with respect to the consolidated financial
statements and schedule of Apropos Technology, Inc. included in its Registration
Statement on Form S-1 (no. 333-90873) filed with the Securities and Exchange
Commission.
/S/ ERNST & YOUNG LLP
Chicago, Illinois
March 29, 2000
