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Registration No. 33-
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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I Q S O F T W A R E C O R P O R A T I O N
(Exact name of issuer as specified in its charter)
Georgia 58-1614492
(State of Incorporation) (I.R.S. Employee Identification No.)
3295 River Exchange Drive 30092
Norcross, Georgia (Zip Code)
(Address of Principal Executive Offices)
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IQ Software Corporation 1993 Stock Option Plan
(Full title of the Plan)
Ugo F. Ippolito, Esq.
Glass, McCullough, Sherrill & Harrold
1409 Peachtree Street, N.E.
Atlanta, Georgia 30309
(Name and address of agent for service)
(404) 885-1500
(Telephone number, including area code, of agent for service)
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<TABLE>
<CAPTION>
Calculation of Registration Fee
- --------------------------------------------------------------------------------------------------------------
Proposed
Proposed maximum
Title of Amount to be maximum aggregate Amount of
securities to be registered (1) offering price offering Registration
registered per share (2) price (2) Fee(2)
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.000- 300,000 $17.50 $4,557,000 $1,571.38
</TABLE>
(1) The shares of Common Stock to be registered represent additional shares
of Common Stock which may be acquired pursuant to options which have been
granted or which may be granted in the future under the 1993 Stock Option
Plan as amended.
(2) Pursuant to Rule 457(h), the proposed maximum aggregate offering price
and the amount of the registration fee are being computed based on the
actual price at which the outstanding options to acquire 127,000 shares
may be exercised; and for options which have not yet been granted to
acquire 173,000 shares, based on the average of the closing price of a
share of Common Stock of IQ Software Corporation traded on the NASDAQ
National Market System on July 5, 1996.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by IQ Software Corporation
("Company") with the Securities and Exchange Commission are incorporated herein
by reference and made a part hereof:
1. The Company's Report on Form 10-K for the fiscal year ended January 31,
1996.
2. The Company's Quarterly Report on Form 10-Q for the quarter ended April
30, 1996.
3. The description of the Company's Common Stock which is contained in its
Registration Statement filed on Form 8-A under the Securities Exchange Act of
1934 ("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 hereby
have been sold, or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated herein by reference in the registration
statement and to be a part of this Registration Statement from the date of the
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
1. The consolidated financial statements of the Company appearing in IQ
Software Corporation's Annual Report (Form 10-K) for the fiscal year ended
January 31, 1996, have been audited by Ernst & Young LLP, independent auditors,
as set forth in their report thereon included therein and incorporated herein
by reference. Such consolidated
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financial statements are incorporated herein by reference in reliance
upon such report given upon the authority of such firm as experts in accounting
and auditing.
2. The legality of the shares of Common Stock offered hereby has been
passed upon for the Company by Glass, McCullough, Sherrill & Harrold. Ugo F.
Ippolito is a director and member of the Compensation Committee and the Audit
Committee, and Secretary of the Company, and is a partner of Glass, McCullough,
Sherrill & Harrold. Mr. Ippolito, on July 1, 1996, beneficially owned 28,261
shares of Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Indemnification of directors and officers of the Company is governed by
Sections 14-2-850 through 859 of the Official Code of Georgia as follows:
Section 14-2-850. PART DEFINITIONS.
As used in this part, the term:
(1) "Corporation" includes any domestic or foreign predecessor
entity of a corporation in a merger or other transaction in which
the predecessor's existence ceased upon consummation of the
transaction.
(2) "Director" means an individual who is or was a director of
a corporation or an individual who, while a director of a
corporation, is or was serving at the corporation's request as a
director, officer, partner, trustee, employee, or agent of another
foreign or domestic corporation, partnership, joint venture, trust,
employee benefit plan, or other enterprise. A director is
considered to be serving an employee benefit plan at the
corporation's request if his duties to the corporation also impose
duties on, or otherwise involve services by, him to the plan or to
participants in or beneficiaries of the plan. Director includes,
unless the context requires otherwise, the estate or personal
representative of a director.
(3) "Expenses" include attorney's fees.
(4) "Liability" means the obligation to pay a judgment,
settlement, penalty, fine (including an excise tax assessed with
respect to an employee benefit plan), or reasonable expenses
incurred with respect to a proceeding.
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(5) "Party" includes an individual who was, is, or is threatened to be
made a named defendant or respondent in a proceeding.
(6) "Proceeding" means any threatened, pending, or completed action, suit,
or proceeding, whether civil, criminal, administrative, or investigative and
whether formal or informal.
Section 14-2-851. AUTHORITY TO INDEMNIFY.
(a) Except as provided in subsections (d) and (e) of this Code
section, a corporation may indemnify or obligate itself to
indemnify an individual made a party to a proceeding because he is
or was a director against liability incurred in the proceeding if
he acted in a manner he believed in good faith to be in or not
opposed to the best interests of the corporation and, in the case
of any criminal proceeding, he had no reasonable cause to believe
his conduct was unlawful.
(b) A director's conduct with respect to an employee benefit
plan for a purpose he believed in good faith to be in the interests
of the participants in and beneficiaries of the plan is conduct
that satisfies the requirement of subsection (a) of this Code
section.
(c) The termination of a proceeding by judgment, order,
settlement, or conviction, or upon a plea of nolo contendere or its
equivalent is not, of itself, determinative that the director did
not meet the standard of conduct set forth in subsection (a) of
this Code section.
(d) A corporation may not indemnify a director under this Code
section:
(1) In connection with a proceeding by or in the right
of the corporation in which the director was adjudged liable
to the corporation; or
(2) In connection with any other proceeding in which he
was adjudged liable on the basis that personal benefit was
improperly received by him.
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(e) Indemnification permitted under this Code section in
connection with a proceeding by or in the right of the corporation
is limited to reasonable expenses incurred in connection with the
proceeding.
Section 14-2-852. MANDATORY INDEMNIFICATION.
Unless limited by its articles of incorporation, to the extent
that a director has been successful, on the merits or otherwise, in
the defense of any proceeding to which he was a party, or in defense
of any claim, issue, or matter therein, because he is or was a
director of the corporation, the corporation shall indemnify the
director against reasonable expenses incurred by him in connection
therewith.
Section 14-2-853. ADVANCE FOR EXPENSES.
(a) A corporation may pay for or reimburse the reasonable
expenses incurred by a director who is a party to a proceeding in
advance of final disposition of the proceeding if:
(1) The director furnishes the corporation a written
affirmation of his good faith belief that he has met the
standard of conduct set forth in subsection (a) of Code
Section 14-2-851; and
(2) The director furnishes the corporation a written
undertaking, executed personally or on his behalf, to repay
any advances if it is ultimately determined that he is not
entitled to indemnification under this part.
(b) The undertaking required by paragraph (2) of subsection (a)
of this Code section must be an unlimited general obligation of the
director but need not be secured and may be accepted without
reference to financial ability to make repayment.
Section 14-2-854. COURT-ORDERED INDEMNIFICATION AND ADVANCE FOR EXPENSES.
Unless a corporation's articles of incorporation provide otherwise,
a director of the corporation who is a party to a proceeding may
apply for indemnification or advances for expenses to the court
conducting the proceeding or to another court of competent
jurisdiction. On receipt of an
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application, the court after giving any notice the court considers
necessary may order indemnification or advances for expenses if it
determines:
(1) The director is entitled to mandatory
indemnification under Code Section 14-2-852, in which case
the court shall also order the corporation to pay the
director's reasonable expenses incurred to obtain court
ordered indemnification;
(2) The director is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances,
whether or not he met the standard of conduct set forth in
subsection (a) of Code Section 14-2-851 or was adjudged
liable as described in subsection (d) of Code Section
14-2-851, but if he was adjudged so liable his
indemnification is limited to reasonable expenses incurred
unless the articles of incorporation or a bylaw, contract, or
resolution approved or ratified by the shareholders pursuant
to Code Section 14-2-856 provides otherwise; or
(3) In the case of advances for expenses, the director
is entitled, pursuant to the articles of incorporation,
bylaws, or any applicable resolution or agreement, to payment
or reimbursement of his reasonable expenses incurred as a
party to a proceeding in advance of final disposition of the
proceeding.
Section 14-2-855. DETERMINATION AND AUTHORIZATION OF INDEMNIFICATION.
(a) A corporation may not indemnify a director under Code
Section 14-2-851 unless authorized thereunder and a determination
has been made in the specific case that indemnification of the
director is permissible in the circumstances because he has met the
standard of conduct set forth in subsection (a) of Code Section
14-2-851.
(b) The determination shall be made:
(1) By the board of directors by majority vote of a
quorum consisting of directors not at the time parties to the
proceeding;
(2) If a quorum cannot be obtained under paragraph (1)
of this subsection, by majority vote of a committee duly
designated by
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the board of directors (in which designation directors who
are parties may participate), consisting solely of two or
more directors not at the time parties to the
proceeding;
(3) By special legal counsel:
(A) Selected by the board of directors or its
committee in the manner prescribed in paragraph (1) or
(2) of this subsection; or
(B) If a quorum of the board of directors cannot
be obtained under paragraph (1) of this subsection and
a committee cannot be designated under paragraph (2) of
this subsection, selected by majority vote of the full
board of directors (in which selection directors who
are parties may participate); or
(4) By the shareholders, but shares owned by or voted
under the control of directors who are at the time parties to
the proceeding may not be voted on the determination.
(c) Authorization of indemnification or an obligation to
indemnify and evaluation as to reasonableness of expenses shall be
made in the same manner as the determination that indemnification is
permissible, except that if the determination is made by special
legal counsel, authorization of indemnification and evaluation as to
reasonableness of expenses shall be made by those entitled under
paragraph (3) of subsection (b) of this Code section to select
counsel.
Section 14-2-856. SHAREHOLDER APPROVED INDEMNIFICATION.
(a) If authorized by the articles of incorporation or a bylaw,
contract, or resolution approved or ratified by the shareholders by
a majority of the votes entitled to be cast, a corporation may
indemnify or obligate itself to indemnify a director made a party to
a proceeding including a proceeding brought by or in the right of
the corporation, without regard to the limitations in other Code
sections of this part.
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(b) The corporation shall not indemnify a director under this
Code section for any liability incurred in a proceeding in which the
director is adjudged liable to the corporation or is subjected to
injunctive relief in favor of the corporation:
(1) For any appropriation, in violation of his duties,
of any business opportunity of the corporation;
(2) For acts or omissions which involve intentional
misconduct or a knowing violation of law;
(3) For the types of liability set forth in Code Section
14-2-832; or
(4) For any transaction from which he received an
improper personal benefit.
(c) Where approved or authorized in the manner described in
subsection (a) of this Code section, a corporation may advance or
reimburse expenses incurred in advance of final disposition of the
proceeding only if:
(1) The director furnishes the corporation a written
affirmation of his good faith belief that his conduct does
not constitute behavior of the kind described in subsection
(b) of this Code section; and
(2) The director furnishes the corporation a written
undertaking, executed personally or on his behalf, to repay
any advances if it is ultimately determined that he is not
entitled to indemnification under this Code section.
Section 14-2-857. INDEMNIFICATION OF OFFICERS, EMPLOYEES, AND AGENTS.
Unless a corporation's articles of incorporation provide
otherwise:
(1) An officer of the corporation who is not a director
is entitled to mandatory indemnification under Code Section
14-2-852 and is entitled to apply for court order
indemnification under Code Section 14-2-854, in each case to
the same extent as a director; and
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(2) A corporation may also indemnify and advance
expenses to an officer, employee, or agent who is not a
director to the extent, consistent with public policy, that
may be provided by its articles of incorporation, bylaws,
general or specific action of its board of directors, or
contract.
Section 14-2-858. INSURANCE.
A corporation may purchase and maintain insurance on behalf of
an individual who is or was a director, officer, employee, or agent
of the corporation or who, while a director, officer, employee, or
agent of the corporation, is or was serving at the request of the
corporation as a director, officer, partner, trustee, employee, or
agent of another foreign or domestic corporation, partnership, joint
venture, trust, employee benefit plan, or other enterprise against
liability asserted against or incurred by him in that capacity or
arising from his status as a director, officer, employee, or agent,
whether or not the corporation would have power to indemnify him
against the same liability under Code Section 14-2-851 or Code
Section 14-2-852.
Section 14-2-859. APPLICATION OF PART.
(a) A provision treating a corporation's indemnification of or
advance for expenses to directors that is contained in its articles
of incorporation, bylaws, a resolution of its shareholders or board
of directors, or in a contract or otherwise, is valid only if and to
the extent the provision is consistent with this part. If articles
of incorporation limit indemnification or advance for expenses,
indemnification and advance for expenses are valid only to the
extent consistent with the articles.
(b) This part does not limit a corporation's power to pay or
reimburse expenses incurred by a director in connection with his
appearance as a witness in a proceeding at a time when he has not
been made a named defendant or respondent to the proceeding.
The Bylaws of the Company provide that each director, officer, employee or
agent of the Company and each person who has acted at its request, in any
capacity, on behalf of the Company, including as a director, officer, employee
or agent of another corporation, joint venture, trust or other enterprise, who
was or is a party or who is threatened to be made a party to any threatened,
pending or completed action, suit or
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proceeding (civil, criminal, administrative or investigative) by reason
of the fact that such person was serving in any such capacity, shall be
indemnified by the Company to the fullest extent permitted by the laws of the
State of Georgia. The Company may purchase indemnification insurance on behalf
of such persons against liability which may be asserted against them in any such
capacity regardless of whether the Company would have the power to indemnify
such persons against the liability asserted against them. Expenses incurred in
defending a civil or criminal action, suit or proceeding may be paid
by the Company in advance of the final disposition of such action, suit or
proceeding in the specific case upon authorization as required by the laws of
the State of Georgia.
The Articles further provide that the Company shall indemnify a director
made a party to a proceeding against liability incurred in the proceeding, and
shall advance and reimburse expenses incurred in the proceeding, including a
proceeding brought by or in the right of the Company, without regard to
limitations contained elsewhere under Georgia law; provided, however, that the
Company shall not indemnify a director for any liability incurred in a
proceeding in which the director is adjudged liable to the Company or is
subjected to injunctive relief in favor of the Company:
(i) For any appropriation, in violation of his/her duties, of any
business opportunity of the Company;
(ii) For acts or omissions which involve intentional misconduct or a
knowing violation of law;
(iii) For liability resulting from distributions of assets in
violation of Georgia law; or
(iv) For any transaction from which he/she received an improper
personal benefit.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
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ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<S> <C>
3 Amended and Restated Articles of Incorporation incorporated
by reference to Exhibit 3(a) to the Registration Statement on
Form S-1 filed by the Company on April 16, 1992 (Registration
Statement No. 33-47268)
5.1 Opinion of Counsel
10(h) 1993 Stock Option Plan incorporated by reference to Exhibit
10(h) to the Registration Statement on Form S-8 filed by the
Company on November 22, 1994 (Registration Statement No.
33-86630), as amended on June 20, 1995 for the purpose of
authorizing the issuance of 300,000 additional shares under the
1993 Stock Option Plan
23.1 Consent of Counsel (incorporated in Exhibit 5.1)
23.2 Consent of Independent Auditors.
</TABLE>
ITEM 9. UNDERTAKINGS
1. The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration;
(b) 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;
(c) 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
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offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof;
(d) 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.
2. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933 (the "1933 Act"),
each filing of the Registrant's Annual Report pursuant to Section 13(a) or
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 herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
3. Insofar as indemnification for liabilities arising under the 1933 Act
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 1933 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 1933 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 Registrant
certifies that it has reasonable grounds to believe that it meets all 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 Norcross, State of Georgia, on the 11th day of
July, 1996.
IQ SOFTWARE CORPORATION
By: /s/ Charles R. Chitty
---------------------------------
Charles R. Chitty
Chairman of the Board, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the 11th day of July, 1996.
/s/ J. William Goodhew /s/ Charles R. Chitty
- --------------------------------- ---------------------------------
J. William Goodhew, III, Director Charles R. Chitty, Chairman of the
Board, President and Chief Executive
Officer
/s/ Richard L. Jackson
- ---------------------------------
Richard L. Jackson, Director
/s/ J. Leland Strange /s/ J. Kent Elmer
- --------------------------------- ---------------------------------
J. Leland Strange, Director J. Kent Elmer, Controller
(principal accounting officer)
/s/ Ugo F. Ippolito
- ---------------------------------
Ugo F. Ippolito, Director
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Description Page
- ------- ----------- ------
<S> <C> <C>
3 Amended and Restated Articles of Incorporation
incorporated by reference to Exhibit 3(a) to the
Registration Statement on Form S-1 filed by the
Company on April 16, 1992 (Registration Statement
No. 33-47268)
5.1 Opinion of Counsel 16
10(h) 1993 Stock Option Plan incorporated by reference to Exhibit 10(h)
to the Registration Statement on Form S-8 filed by the Company on
November 22, 1994 (Registration Statement No. 33-86630),
as amended on June 20, 1995 for the purpose of authorizing the
issuance of 300,000 additional shares under the 1993 Plan.
23.1 Consent of Counsel (incorporated in Exhibit 5.1)
23.2 Consent of Independent Auditors. 17
</TABLE>
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LAW OFFICES
GLASS, MCCULLOUGH, SHERRILL & HARROLD
1409 PEACHTREE STREET, N.E.
TELEPHONE (404) 885-1500 ATLANTA, GEORGIA 30309 WRITER'S DIRECT NUMBER
TELECOPIER (404) 892-1801
EXHIBIT 5.1
July 11, 1996
IQ Software Corporation
3295 River Exchange Drive
Suite 550
Norcross, Georgia 30092
Gentlemen:
We have acted as counsel to IQ Software Corporation, a Georgia corporation
("Company"), in connection with the preparation of the Registration Statement
No. 33-____________ on Form S-8 ("Registration Statement") filed by you with
the Securities and Exchange Commission covering shares to be sold pursuant to
the Company's Stock Option Plan.
In the capacity described above, we have considered such matters of law
and of fact, including the examination of originals or copies, certified or
otherwise identified to our satisfaction, of such records and documents of the
Company, certificates of officers and representatives of the Company,
certificates of public officials and such other documents as we have deemed
appropriate as a basis for the opinions hereinafter set forth.
The opinions set forth herein are limited to the laws of the State of
Georgia and applicable federal laws.
Based upon the foregoing, it is our opinion that the shares of Common
Stock of the Company, when issued and sold on the terms described in the
Registration Statement, will be validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to us in the prospectus under the caption "Legal
Matters."
Yours truly,
/S/ GLASS, McCULLOUGH, SHERRILL & HARROLD
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EXHIBIT 23.2 - CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-8) pertaining to the IQ Software Corporation
1993 Stock Option Plan and to the incorporation by reference therein of our
report dated March 1, 1996 (except for the second paragraph of Note 4 as to
which the date is April 18, 1996), with respect to the consolidated financial
statements and schedule of IQ Software Corporation included in its Annual
Report (Form 10-K) for the year ended January 31, 1996, filed with the
Securities and Exchange Commission.
/S/ Ernst & Young LLP
ERNST & YOUNG LLP
Atlanta, Georgia
July 9, 1996
