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As filed with the U.S. Securities and Exchange Commission on June 10, 1996.
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ONGARD SYSTEMS, INC.
- -------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 84-1149380
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(State or other jurisdiction of (IRS employer identification no.)
incorporation or organization)
40 Commerce Drive, Hauppauge, New York 11788
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(Address of Principal Executive Offices, including ZIP Code)
OnGard Systems, Inc. Stock Option Plan
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(Full title of the plan)
Mark E. Weiss, 40 Commerce Drive, Hauppauge, New York 11788
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(Name and address of agent for service)
(516) 231-8989
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(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
Title of Amount Proposed Proposed Amount of
Securities to be Maximum Maximum Registration
to be Registered Offering Price Aggregate Fee
Registered Per Share Offering Price
$.001 par value 100,000 $1.00 $ 100,000 $ 34.48
Common Stock
$.001 par value 550,000 $3.50 $1,925,000 $ 663.79
Common Stock
$.001 par value 1,250 $4.375 $ 5,469 $ 1.89
Common Stock
$.001 par value 282,500 $5.00 $1,412,500 $ 487.06
Common Stock
$.001 par value 15,000 $5.125 $ 76,875 $ 26.51
Common Stock
$.001 par value 10,000 $6.00 $ 60,000 $ 20.69
Common Stock
$.001 par value 169,500 $6.50 $1,101,750 $ 379.91
Common Stock
$.001 par value 58,750 $7.50 $ 440,625 $ 151.94
Common Stock
$.001 par value 15,000 $8.00 $ 120,000 $ 41.38
Common Stock
Total 1,202,000 NA $5,236,750 $1807.65
* Minimum Filing Fee per Section 6(b) of the Securities Act of 1933
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PROSPECTUS
ONGARD SYSTEMS, INC.
40 COMMERCE DRIVE, HAUPPAUGE, NEW YORK 11788
(516) 231-8989
1,202,000 SHARES OF COMMON STOCK
This Prospectus relates to the offer and sale by OnGard Systems, Inc., a
Delaware corporation (the "Company"), of shares of its $.001 par value per share
common stock (the "Common Stock") to employees, consultants and non-employee
directors of the Company (the "Participants") pursuant to the Company's 1992
Stock Option Plan (the "1992 Plan") and the Company's Stock Option Plan approved
by the stockholders of the Company in January, 1995 (the "1995 Plan"). The 1992
Plan and the 1995 Plan are collectively referred to herein as the "Plan". The
Company is registering hereunder 1,202,000 shares of the Common Stock which may
be issued to Participants upon exercise of stock options awarded to Participants
under the terms of the Plan.
The Common Stock is not subject to any restriction on transferability
except with respect to shares issued to affiliates of the Company as defined in
the Securities Act of 1933, as amended (the "Act"). In general, an affiliate is
any director, executive officer or controlling shareholder of the Company. The
Participants, however, may become subject to Section 16(b) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), which would limit their
discretion in transferring the shares acquired in the Company. (See "GENERAL
INFORMATION - RESTRICTIONS ON RESALES.")
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED
BY THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is June 10, 1996
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This Prospectus is part of a Registration Statement which was filed and
became effective under the Act and does not contain all of the information set
forth in the Registration Statement. Certain portions of the Registration
Statement have been omitted pursuant to the rules and regulations promulgated by
the Securities and Exchange Commission (the "Commission") under the Act. The
statements in this Prospectus as to the contents of the Plan, any contracts or
other documents filed as an exhibit to either the Registration Statement or
other filings by the Company with the Commission are qualified in their entirety
by reference thereto.
A copy of any document or part thereof incorporated by reference in this
Prospectus but not delivered herewith will be furnished without charge upon
written or oral request. Written requests should be addressed to: Director of
Investor Relations, OnGard Systems, Inc., 40 Commerce Drive, Hauppauge, New York
11788; (516) 231-8989.
The Company is subject to the reporting requirements of the Exchange Act
and, in accordance therewith, files reports and other information with the
Commission. These reports, as well as the proxy statements, information
statements, and other information filed by the Company under the Exchange Act,
may be inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549. Copies may be
obtained at the prescribed rates. In addition, the Common Stock of the Company
is quoted on the NASDAQ (Small Cap-SM-) system maintained by the National
Association of Securities Dealers, Inc. ("NASD") under the symbol "OGSI"; thus,
copies of these reports, proxy statements, information statements and other
information may also be examined at the offices of the NASD at 1735 K Street,
N.W., Washington, D.C. 20549.
No person has been authorized to give any information or to make any
representation, other than those contained in this Prospectus, and, if given or
made, such other information or representation must not be relied upon as having
been authorized by the Company. This Prospectus does not constitute an offer or
a solicitation by anyone in any state in which such is not authorized or in
which the person making such is not qualified or to any person to whom it is
unlawful to make an offer or solicitation.
Neither the delivery of this Prospectus nor any sale made hereunder shall,
under any circumstance, create any implication that there has not been a change
in the affairs of the Company since the date hereof.
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TABLE OF CONTENTS
PAGE
General Information. . . . . . . . . . . . . . . . . . . . . . . 6
The Company . . . . . . . . . . . . . . . . . . . . . . . . 6
Purposes. . . . . . . . . . . . . . . . . . . . . . . . . . 6
Common Stock. . . . . . . . . . . . . . . . . . . . . . . . 6
The Participants. . . . . . . . . . . . . . . . . . . . . . 6
Restrictions on Transfer. . . . . . . . . . . . . . . . . . 7
Federal Income Tax Consequences . . . . . . . . . . . . . . 7
Restrictions on Resales . . . . . . . . . . . . . . . . . . 10
Documents Incorporated by Reference and Additional Information . 10
Interests of Named Experts and Counsel. . . . . . . . . . . 10
Indemnification . . . . . . . . . . . . . . . . . . . . . . 11
5
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GENERAL INFORMATION
THE COMPANY
The Company has its principal executive offices at 40 Commerce Drive,
Hauppauge, New York 11788; the Company's telephone number is (516) 231-8989.
PURPOSES
The Common Stock may be issued by the Company pursuant to stock options
issued under award agreements entered into between the Company and the
Participants in accordance with the Plan. The stock options are intended to
promote the success and enhance the value of the Company by linking the personal
interests of Participants to those of the Company's stockholders and to provide
the Participants with an incentive for outstanding performance. The Plan is
intended to provide flexibility to the Company in its ability to motivate,
attract and retain the services of Participants upon whose judgment, interest
and special effort the successful conduct of the Company's operation is largely
dependent. Copies of the Plan have been filed as exhibits to the Registration
Statement.
COMMON STOCK
The board has authorized the issuance and delivery of up to 550,000 shares
of the Common Stock to the Participants under the 1992 Plan and the stockholders
have authorized the issuance and delivery of up to 600,000 shares of the Common
Stock to the Participants under the 1995 Plan. In addition, the Company is
seeking the approval of the stockholders for the issuance and delivery of an
additional 900,000 shares of Common Stock under the 1995 Plan at the Company's
Annual Meeting to be held in July, 1996. Certain of the shares offered hereby
will be issued only if the Company's stockholders approve the increase in the
number of shares issuable under the 1995 Plan.
THE PARTICIPANTS
Under the Plan, Participants include employees of the Company who have
outstanding awards granted under the Plan and consultants and non-employee
directors of the Company. Employees include all full-time, nonunion employees
of the Company and its subsidiary. The Committee (as defined in the Plan) has
authority to designate employees to become Participants in the Plan.
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RESTRICTIONS ON TRANSFER
The Participants will become the record and beneficial owners of the shares
of Common Stock upon exercise of the vested stock options awarded under the Plan
and issuance and delivery of the shares, and are entitled to all of the rights
of ownership, including the right to vote any shares awarded and to receive
ordinary cash dividends on the Common Stock. There will be no restrictions on
the transfer of shares issued and delivered upon exercise of stock options
except for shares issued and delivered to affiliates of the Company, as such
term is defined in the Act. Affiliates will be subject to transfer restrictions
as set forth in Rule 144 promulgated under the Act. Generally, an affiliate
will be able to transfer a limited number of shares upon completion of a two-
year holding period.
FEDERAL INCOME TAX CONSEQUENCES
The following is a brief summary of the Company's understanding of the
principal anticipated federal income tax consequences of options granted and
exercised under the Plan based upon the applicable provisions of the Code in
effect on the date hereof. This summary is not intended to be exhaustive and
does not describe foreign, state or local tax consequences.
1. INCENTIVE STOCK OPTIONS. An optionee will not realize taxable
income at the time an incentive stock option is granted or exercised. If Common
Stock is issued to an optionee pursuant to the exercise of an incentive stock
option, and if the optionee holds the shares to a date that is both two years
after the grant of the incentive stock option and one year after exercise of the
option, then (a) any gain upon the subsequent sale of the shares will be taxed
to the optionee as a long-term capital gain, and any loss sustained will be a
long-term loss, and (b) no deduction will be allowed to the Company for federal
income tax purposes. The spread between the incentive stock option exercise
price and the fair market value of the shares at the time of exercise is an
adjustment item for purposes of the alternative minimum tax.
If an optionee disposes of shares acquired upon the exercise of an
incentive stock option before the expiration of the holding periods described
above, then generally (a) the optionee will be taxed as if he had received
compensation income in the year of disposition in an amount equal to the excess,
if any, of the fair market value of the shares on the exercise date (or, if less
than such fair market value, the amount realized on the disposition of the
shares) over the exercise price paid for such shares, and (b) the Company will
generally be entitled to a corresponding deduction in that year. Any further
gain or loss
7
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realized by the participant will be taxed as short-term or long-term capital
gain or loss, as the case may be, and will not result in any deduction by the
Company.
Subject to certain exceptions for disability or death, if an incentive
stock option is exercised more than three months following the termination of
the optionee's employment, the option will generally be treated for tax purpose
as a nonqualified stock option.
All stock acquired pursuant to the exercise of an incentive stock
option is subject to the holding period rules and disqualifying disposition
rules described above, regardless of whether such stock is paid for with cash or
previously acquired shares. Furthermore, the exercise of an incentive stock
option with previously acquired stock will be deemed to be an exchange to which
Section 1036 of the Internal Revenue Code of 1986 (the "Code") applies. The
optionee's basis in the number of shares of incentive stock option stock that
equals the number of previously acquired shares used to exercise the incentive
stock option shall equal the basis of the previously acquired shares used to
exercise the incentive stock option, increased by the amount of compensation
recognized in the transaction, if any. The optionee's basis in any remaining
shares of incentive stock option stock will be zero.
If "statutory option stock" (stock acquired through the exercise of a
qualified stock option, an incentive stock option, an option granted under any
employee stock purchase plan or a restrictive stock option) is transferred to
acquire shares offered under an incentive stock option, and if the applicable
holding periods for such statutory option stock have not been met before such
transfer, the transfer will result in ordinary income with respect to the stock
disposed of, but will not affect the tax treatment, as described above, for the
stock received.
To the extent that the fair market value of Company Common Stock
(determined as of the date of grant) subject to incentive stock options
exercisable for the first time by an optionee during any calendar year exceeds
$100,000, those options will not be considered incentive stock options.
2. NONQUALIFIED STOCK OPTIONS. An optionee will not recognize
taxable income at the time a nonqualified stock option is granted, but taxable
income will be realized, and the Company will generally be entitled to a
deduction, at the time of exercise of the nonqualified stock option. The amount
of income (and the Company's deduction) will be equal to the difference between
the nonqualified stock option exercise price and the fair market value of the
shares on the date of exercise. The income realized will be taxed at ordinary
income tax rates for federal income tax purposes. On subsequent disposition of
the shares
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acquired upon exercise of a nonqualified stock option, capital gain or loss
as determined under the normal capital asset holding period rules will be
realized in the amount of the difference between the proceeds of sale and the
fair market value of the shares on the date of exercise. Where the
nonqualified stock option exercise price is paid in "delivered stock," the
exercise is treated as a tax-free exchange of the shares of delivered stock
(without recognizing any taxable gain with respect thereto) for a like number
of shares. The optionee's basis in the number of new shares that equals the
number of shares used to exercise the nonqualified stock option will equal
the basis of the shares used to exercise the nonqualified stock option, and
the optionee's holding period for the new shares will include the optionee's
holding period in the shares used to exercise the nonqualified stock option.
The optionee's basis in any remaining shares will equal the amount of
compensation income recognized upon exercise of the nonqualified stock option
and the optionee's holding period for such shares will begin on the date the
optionee acquires them. This mode of payment does not affect the ordinary
income tax liability incurred upon exercise of the nonqualified stock option
described above.
Notwithstanding the foregoing, an optionee will not recognize ordinary
compensation income upon the exercise of a nonqualified stock option if the
Common Stock received upon exercise is subject to forfeiture restrictions
imposed by Section 16(b) of the Exchange Act. Consequently, those optionees
subject to Section 16(b) of the Exchange Act may not recognize income upon
exercise of their options. Rather, unless the optionee makes a Section 83(b)
election as described below, the optionee will recognize ordinary income on the
date the Section 16(b) transfer restrictions, if any, lapse equal to the amount
by which the fair market value of the Common Stock on such date exceeds the
option exercise price (plus the amount paid for the option, if any).
An optionee subject to the restrictions imposed by Section 16(b) of
the Exchange Act may, within ten days of receipt of Common Stock upon exercise
of an option, elect under Section 83(b) of the Code to have the value of the
Common Stock taxed in the year of receipt based on the fair market value of such
shares at the time of receipt, determined without regard to the Section 16(b)
restrictions. If the optionee makes the Section 83(b) election, future
appreciation of the Common Stock would not be taxed until the holder disposes of
the Common Stock in a taxable transaction. An optionee who makes a Section
83(b) election and later suffers a forfeiture pursuant to Section 16(b) may not
deduct the amount of income that he or she recognized when making the election.
3. WITHHOLDING. Under the Plan, whenever shares of stock are to be
issued in satisfaction of options exercised under the Plan, the Company has the
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power to require the recipient of the stock to remit to the Company an amount
sufficient to satisfy federal, state and local withholding tax requirements.
RESTRICTIONS ON RESALES
In the event that an affiliate of the Company acquires shares of Common
Stock hereunder, the affiliate will be subject to Section 16(b) of the Exchange
Act. This would mean that the affiliate could not sell any shares acquired
hereunder for a period of at least six (6) months thereafter. Further, in the
event that any affiliate acquiring shares hereunder has sold any shares of
Common Stock in the previous six months preceding the receipt of shares
hereunder, any so-called "profit," as computed under Section 16(b) of the
Exchange Act, would be required to be disgorged from the recipient by the
Company. Shares of Common Stock acquired hereunder by other than affiliates are
not subject to Section 16(b) of the Exchange Act.
DOCUMENTS INCORPORATED BY REFERENCE
AND
ADDITIONAL INFORMATION
The Company hereby incorporates by reference (i) its annual report on Form
10-KSB, as amended, for the year ended December 31, 1995, filed pursuant to
Section 13 of the Exchange Act, (ii) any and all Forms 10-QSB under the Act or
Exchange Act subsequent to any filed Form 10-KSB, as well as all other reports
filed under Section 13 of the Exchange Act, and the Company's Form 8-A filing,
and (iii) its annual report, if any, to stockholders delivered pursuant to Rule
14a-3 of the Exchange Act. In addition, all further documents filed by the
Company pursuant to Sections 13, 14, or 15(d) of the Exchange Act prior to the
termination of this offering are deemed to be incorporated by reference into
this Prospectus and to be a part hereof from the date of filing.
A copy of any document or part thereof incorporated by reference in the
Registration Statement but not delivered with this Prospectus will be furnished
without charge upon written or oral request. Requests should be addressed to:
Director of Investor Relations, OnGard Systems, Inc., 40 Commerce Drive,
Hauppauge, New York 11788; (516) 231-8989.
INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
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INDEMNIFICATION
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers, or persons controlling the Company, the
Company has been informed that in the opinion of the Commission, such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable.
11
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Registrant hereby states that (i) all documents set forth in (a) through
(c) below are incorporated by reference in this registration statement, and (ii)
all documents subsequently filed by registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 as amended, 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.
(a) registrant's latest annual report, whether of nor filed
pursuant to Sections 13(a) or 15(d) of the Exchange Act;
(b) all other reports filed pursuant to Sections 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by the
registrant's documents referred to in (a) above; and
(c) the latest prospectus filed pursuant to Rule 424(b) under
the Securities Act.
ITEM 4. DESCRIPTION OF SECURITIES
Each share of Common Stock currently outstanding is fully paid for and
nonassessable, and is entitled to one vote per share on all matters submitted
for action by stockholders. All shares of Common Stock are equal to each other
with respect to the election of directors and cumulative voting is not
permitted; therefore, the holders of more than 50% of the outstanding common
shares can, if they choose to do so, elect all directors. The terms of the
directors are not staggered. Directors are elected annually to serve until the
next annual meeting of stockholders and until their successors are elected and
qualified. There are no preemptive rights to purchase any additional shares of
common or other securities of registrant, except that the purchasers of
1,148,000 shares of the registrant's common stock in a private placement
conducted in September, 1995 were given the right to purchase each such
purchaser's pro rata share of new securities (as defined in the subscription
agreement relating to the private placement) which the registrant may offer from
time to time. In the event of liquidation or dissolution, holders of shares of
Common Stock are entitled to receive, pro rata, the remaining
12
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assets after creditors and holders of any class of stock having liquidation
rights senior to holders of Common Stock have been paid in full. Reference
is made to the description of the Common Stock prepared in compliance with
Item 202 of Regulation S-B in the Prospectus filed with the Securities and
Exchange Commission as part of registrant's initial public offering on Form
SB-2 and its Form 8-A filing under the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Consistent with section 145 of the Delaware General Corporation Law
("Delaware Law"), Article VII of the Company's By-Laws provides that the Company
shall indemnify any person in connection with legal proceedings threatened or
brought against him by reason of his present or past status as an officer or
director of the Company, provided that the person acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Company, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The Company shall also
indemnify any such person in connection with any action by or in the right of
the Company provided the person acted in good faith an in a manner he reasonably
believed to be in or not opposed to the best interests of the Company; except
that no indemnification may be made if such person is adjudged to be liable to
the Company unless the court in which such action was brought determines, upon
application, that despite such adjudication, the person is fairly and reasonably
entitled to such indemnification as the court deems proper. In addition, to the
extent that any officer or director is successful in the defense of any such
legal proceeding, the Company is required to indemnify him against expenses,
including attorneys' fees, that are actually and reasonably incurred by him in
connection therewith. The By-Laws also contain a nonexclusivity clause which
provides in substance that the indemnification rights under the By-Laws shall
not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any agreement with the Company, any By-
Law, any vote of stockholders or disinterested directors of the Company or
otherwise.
Consistent with section 102(b) of the Delaware Law, Article VIII of the
Company's Certificate of Incorporation provides that a director of the Company
shall not be liable to the Company or its stockholders for damages for breach of
fiduciary duties as director, subject to certain limitations. Article VIII does
not eliminate or limit the liability of a director for (a) any breach of the
director's duty
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of loyalty to the Company or its stockholders; (b) any acts of
omissions not in good faith or which involved intentional misconduct or a
knowing violation of law; (c) any conduct that is the subject of section 174 of
the Delaware Law; or d) any transaction from which the director derived an
improper personal benefit.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
The following exhibits are filed as part of this registration statement
pursuant to Item 601 of Regulation S-B and are specifically incorporated herein
by this reference:
EXHIBIT NO. TITLE
5 Opinion of Reinhart, Boerner Van Deuren, Norris &
Rieselbach, P.C. regarding the legality of the securities
registered.
10(a) OnGard Systems, Inc. 1992 Stock Option Plan. (i)
10(b) OnGard Systems, Inc. Stock Option Plan. (ii)
24 Consent of Reinhart, Boerner Van Deuren, Norris &
Rieselbach, P.C. to the use of its opinion with respect to
the legality of the securities being registered hereby.
Filed as part of Exhibit No. 5
(i) Previously filed with Registration Statement No. 33-48372,
and incorporated herein by reference.
(ii) Previously filed as Exhibit A to OnGard's definitive Proxy
Statement relating to the annual meeting of stockholders
held on January 10, 1995 and incorporated herein by
reference.
ITEM 9. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of registrant
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pursuant to the foregoing provisions, or otherwise, 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 registrant of expenses
incurred or paid by a director, officer or controlling person of 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, 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 is against public policy
as expressed in the Act and will be governed by the final adjudication of such
issue.
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:
(i) include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) 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, represents a fundamental
change in the information set forth in the registration
statement; and
(iii) include any material information which respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the Registration Statement, including, but
not limited to, any addition or deletion of a managing
underwriter.
(2) That, for the purpose of determining any liability under the
Securities Act, each post-effective amendment to 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.
(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.
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(4) To deliver or cause to be delivered with the prospectus, to each
person to whom the prospectus is sent or given, the latest annual
report to security holders that is incorporated by reference in the
prospectus and furnished pursuant to and meeting the requirement of
Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934;
and, where interim financial information required to be presented by
Article 3 of Regulation S-X are not set forth in the prospectus, to
deliver, or cause to be delivered to each person to whom the
prospectus is sent or given, the latest quarterly report that is
specifically incorporated by reference in the prospectus to provide
such interim financial information.
Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of registrant's annual
report pursuant to Section 13(a) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to 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.
16
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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 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 Hauppauge, State of New York on June 10, 1996.
ONGARD SYSTEMS, INC.
By: /s/ Mark E. Weiss
--------------------------
Mark E. Weiss, 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.
Signature Title Date
- --------- ------ -------
/s/ Mark E. Weiss President and Director (Principal June 10, 1996
- ------------------ Executive)
Mark E. Weiss
/s/ Philip B. Kart Vice President (Principal Financial June 10, 1996
- ------------------ Officer and Accounting Officer)
Philip B. Kart
Director , 199
- ------------------ ------- -- -
Eric L. Steiner*
Director , 199
- ------------------ ------- -- -
Thomas F. Kearns
/s/ Mark E. Weiss June 10, 1996
- ------------------
*By: Mark E. Weiss,
Attorney-in-Fact
17
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Exhibits 5 and 24
June 10, 1996
OnGard Systems, Inc.
40 Commerce Drive
Hauppauge, New York 11788
Gentlemen:
We have acted as counsel for OnGard Systems, Inc. (the "Company") in
connection with the registration, under the Securities Act of 1933, as amended
(the "Act"), by the Company of 1,202,000 shares of common stock issued and
issuable, upon the exercise of certain stock options to purchase common stock,
(the "Shares") by the Company to certain employees, consultants and non-employee
directors of the Company (the "Participants"). The stock options were awarded
to the Participants under the Company's 1992 Stock Option Plan (the "1992 Plan")
and the Company's Stock Option Plan approved by the Company's stockholders in
January, 1995 (the "1995 Plan"). The Shares were registered by the Company
pursuant to a Registration Statement (the "Registration Statement") which became
effective with the Securities and Exchange Commission (the "Commission") on
June 10, 1996 and may be offered by the Participants to the public.
In rendering this opinion, we have examined and relied upon originals
or copies, certified or otherwise identified to our satisfaction, of various
documents including, but not limited to, the following:
1. The Registration Statement, including the exhibits attached
thereto.
2. The Prospectus, dated June 10, 1996 in the form filed with the
Commission (the "Prospectus").
3. The Certificate of Incorporation of the Company, as amended.
4. The By-Laws of the Company, as amended.
5. Minutes of the meetings of the Board of Directors and Stockholders
of the Company.
6. Consent resolutions of the Board of Directors of the Company.
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7. A specimen certificate for the common stock of the Company.
8. The certificate of officers of the Company as to certain factual
matters.
9. The 1992 Plan, the 1995 Plan and various award agreements pursuant
to which the Shares were and may be issued to the Participants.
10. Such other instruments and documents as we have deemed necessary
or advisable for the purpose of rendering this opinion.
As to various questions of fact material to our opinion, we have
relied upon certificates of officers of the Company and of state officials. In
rendering this opinion we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity to
original documents of all documents submitted to us as copies or drafts of
documents to be executed. We believe that reliance upon such certificates is
reasonable. We have made no other inquiry or investigation as to factual
matters.
Based on the foregoing, and upon such additional investigation as we
have deemed necessary, it is our opinion that:
The portion of the Shares that have been issued have been duly
authorized and, upon issuance, delivery and payment therefor, were validly
issued, fully paid and nonassessable. The Company has duly authorized, reserved
and set aside the portion of the Shares issuable upon exercise of the stock
options issued to the Participants, and such Shares, when issued and paid for
upon exercise of such stock options in accordance with the respective Plan and
award agreement under which they were issued, will be duly and validly
authorized and issued, fully-paid and non-assessable.
With certain exceptions, we are qualified to practice law only in the
State of Colorado and we do not purport to be experts on, or to express any
opinion herein concerning, any law other than the State of Colorado, the
corporate law of the State of Delaware and the federal law of the United
States. This opinion has been delivered to
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you solely for your own use and may not be used for any other purpose or
communicated to a third party without our prior written consent. We hereby
consent to the use of this opinion in the Registration Statement.
Yours very truly,
REINHART, BOERNER, VAN DEUREN,
NORRIS & RIESELBACH, P.C.
BY
Arnold R. Kaplan
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