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Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
BOCA RESEARCH, INC.
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(Exact name of issuer as specified in its charter)
Florida 59-2479377
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(State of Incorporation) (IRS Employer Identification Number)
1601 Clint More Road, Boca Raton, Florida 33487 (561) 997-6227
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(Address and telephone number of Principal Executive Offices)
BOCA RESEARCH, INC.
1996 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full title of the Plan)
Robert P. Heinlein
Vice President of Finance
Chief Financial Officer
Boca Research, Inc.
1601 Clint Moore Road
Boca Raton, Florida 33487
(561) 997-6227
(Name, address and telephone number of agent for service)
Copy to:
Francis J. Feeney, Jr., Esquire
Hutchins, Wheeler & Dittmar
A Professional Corporation
101 Federal Street
Boston, Massachusetts 02110
(617) 951-6600
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) Per Share Price Fee
<S> <C> <C> <C> <C>
Boca Research, Inc.
1996 Non-Employee Director
STOCK OPTION PLAN
Common Stock,
$.01 par value 200,000 $4.50-25.00(2) $1,562,971.00 $412.62
per share
300,000 $4.0625(3) $1,218,750.00 $321.75
</TABLE>
(1) Also registered hereunder are such additional number of shares of Common
Stock, presently indeterminable, as may be necessary to satisfy the antidilution
provisions of the Plan to which this Registration Statement relates.
(2) All such shares are issuable upon exercise of outstanding options with fixed
exercise prices. Pursuant to Rule 457(h), the aggregate offering price and the
fee have been computed upon the basis of the price at which the options may be
exercised.
(3) None of such shares are subject to outstanding options. The exercise price
of such options shall be determined at the time of grant. Accordingly, pursuant
to Rule 457(c) and (h), the price of $4.0625 per share, which is the average of
the high and low sale prices reported on the National Association of Securities
Dealers Automated Quotation System on May 24, 2000, is set forth solely for
purposes of calculating the filing fee.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION
The documents containing the information specified in this Item 1 will
be sent or given to non-employee directors as specified by Rule 428(b)(1). In
accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission") and the instructions to Form S-8, such documents
are not being filed with the Commission either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
The documents containing the information specified in this Item 2 will
be sent or given to non-employee directors as specified by Rule 428(b)(1). In
accordance with the rules and regulations of the Commission and the instructions
to Form S-8, such documents are not being filed with the Commission either as
part of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference the documents listed in
(a) through (c) below. In addition, all documents subsequently filed by the
Company pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934 (prior to 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 thereof from the date
of filing of such documents.
(a) The Company's latest annual report filed pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 or the latest Prospectus filed
pursuant to Rule 424(b) under the Securities Act of 1933, which contains either
directly or by incorporation by reference, audited financial statements for the
Company's latest fiscal year for which such statements have been filed.
(b) All of the reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 since the end of the fiscal year
covered by the annual report or the Prospectus referred to in (a) above.
(c) The description of the Company's Common Stock which is contained in
the Registration Statement filed by the Company under the Securities Exchange
Act of 1934, including any amendment or report filed for the purpose of updating
such description.
ITEM 4. DESCRIPTION OF SECURITIES
Inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the authorization and issuance of the Common Stock
offered hereby will be passed upon for the Company by Hutchins, Wheeler &
Dittmar, A Professional Corporation, Boston, Massachusetts.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 607.0850(1) of the Florida Business Corporation Act, as amended
(the "Florida Act"), provides that, in general, a Florida corporation may
indemnify any person who was or is a party to any proceeding (other than an
action by, or in the right of, the corporation), by reason of the fact that he
is or was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against liability incurred in connection with such proceeding,
including any appeal thereof, if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
corporation and, with respect to any criminal action or proceeding, he had no
reasonable cause to believe his conduct was unlawful.
In the case of proceedings by or in the right of the corporation,
Section 607.0850(2) of the Florida Act provides that, in general, a corporation
may indemnify any person who was or is a party to any such proceeding by reason
of the fact that he is or was a director, officer, employee or agent of the
corporation against expenses and amounts paid in settlement actually and
reasonably incurred in connection with the defense or settlement of such
proceeding, including any appeal thereof, provided that such person acted in
good faith and in a manner he reasonably believed to be in, or not opposed to,
the best interests of the corporation, except that no indemnification shall be
made in respect to any claims as to which such person is adjudged liable unless
a court of competent jurisdiction determines upon application that such person
is fairly and reasonably entitled to indemnity.
Section 607.0850 further provides that to the extent that a director,
officer, employee or agent of a corporation is successful on the merits or in
the defense of any proceeding referred to in subsections (1) or (2) of Section
607.0850 or in the defense of any claim, issue or matter therein, he shall be
indemnified against expenses actually and reasonably incurred by him in
connection therewith; that the corporation may advance such expenses; that
indemnification provided for by Section 607.0850 shall not be deemed exclusive
of any other rights to which the indemnified party may be entitled; and that the
corporation may purchase and maintain insurance on behalf of such person against
any liability asserted against him or incurred by him in any such capacity or
arising out of his status as such whether or not the corporation would have the
power to indemnify him against such liabilities under such Section 607.0850.
Section 607.0850 of the Florida Act further provides that, in general,
indemnification or advancement of expenses shall not be made to or on behalf of
any director, officer, employee or agent if a judgment or other final
adjudication establishes that such person's actions, or omissions to act, were
material to the cause of action so adjudicated and constitute: (i) a violation
of the criminal law, unless such person had reasonable cause to believe his
conduct was unlawful or had no reasonable cause to believe it was unlawful; (ii)
a transaction from which such person derived an improper personal benefit; (iii)
in the case of a director, a circumstance under which the director has voted for
or assented to a distribution made in violation of the Florida Act or the
corporation's articles of incorporation; or (iv) willful misconduct or a
conscious disregard for the best
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interests of the corporation in a proceeding by or in the right of the
corporation to procure a judgment in its favor or in a proceeding by or in the
right of a shareholder.
The Company's Amended and Restated Articles of Incorporation and
By-laws provide that the Company shall indemnify its directors and officers to
the fullest extent permitted by Florida law.
The Company has purchased insurance with respect to, among other
things, the liabilities that may arise under the statutory provisions referred
to above. The directors and officers of the Company also are insured against
certain liabilities, including certain liabilities arising under the Securities
Act of 1933, which might be incurred by them in such capacities and against
which they are not indemnified by the Company.
The Company has entered into separate indemnification agreements with
its directors and officers. The indemnity agreements create certain
indemnification obligations of the Company in favor of the directors and
officers and, as permitted by applicable law, will clarify and expand the
circumstances under which a director or officer will be indemnified.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
NUMBER DESCRIPTION
3.1 Amended and Restated Articles of Incorporation (filed as
Exhibit 3.2 to the Company's Registration Statement on form
S-1, file No. 33-56530 and incorporated herein by reference)
3.2 By-laws of the Company (filed as Exhibit 3.4 to the Company's
Registration Statement on form S-1, file No. 33-56530 and
incorporated herein by reference)
4.1 Boca Research, Inc. 1996 Non-Employee Director Stock Option
Plan
4.2 First Amendment to the 1996 Non-Employee Director Stock
Option Plan
4.3 Second Amendment to the 1996 Non-Employee Director Stock
Option Plan
5.1 Opinion of Hutchins, Wheeler & Dittmar, A Professional
Corporation, as to legality of shares being registered and
consent of Hutchins, Wheeler & Dittmar, A Professional
Corporation
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23.1 Independent Auditors' Consent
23.2 Consent of Hutchins, Wheeler & Dittmar, A Professional
Corporation (included in Exhibit 5.1)
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes the following:
(a) 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 paragraphs (a)(l)(i) and (a)(l)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed 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.
(b) The undersigned registrant hereby undertakes 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 requirements 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
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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.
(c) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to section 13(a) or section
15(d) 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.
(d) The undersigned registrant hereby undertakes, that, 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 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 Act and will be governed by the final adjudication of
such issue.
[THE REMAINDER OF THE PAGE IS INTENTIONALLY LEFT BLANK]
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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 Boca Raton, Florida on May 31, 2000.
BOCA RESEARCH, INC.
By: /S/ ROBERT W. FERGUSON
Name: Robert W. Ferguson
Title: 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 and on the dates indicated.
<TABLE>
<CAPTION>
TITLE DATE
<S> <C> <C>
/s/ Robert W. Ferguson Chief Executive Officer May 31, 2000
-------------------------- and Chairman of the
Robert W. Ferguson Board of Directors
(principal executive officer)
/s/ Robert P. Heinlein Vice President of May 31, 2000
-------------------------- Finance and Chief Financial
Robert P. Heinlein Officer (principal financial
and accounting officer)
/s/ Robert W. Ferguson Director May 31, 2000
--------------------------
Robert W. Ferguson
/s/ H. Ric Luhrs Director May 31, 2000
--------------------------
H. Ric Luhrs
/s/ Douglas K .Raborn Director May 31, 2000
--------------------------
Douglas K. Raborn
/s/ Joseph M. O'Donnell Director May 31, 2000
--------------------------
Joseph M. O'Donnell
/s/ Arthur R. Wyatt Director May 31, 2000
--------------------------
Arthur R. Wyatt
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Blaine E. Davis Director May 31, 2000
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Blaine E. Davis
/S/ Eduard Will Director May 31, 2000
--------------------------
Eduard Will
/s/ Karl Gruns Director May 31, 2000
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Karl Gruns
/s/ Michael S. Polacek Director May 31, 2000
--------------------------
Michael S. Polacek
/s/ Bernard A. Carballo Director May 31, 2000
--------------------------
Bernard A. Carballo
/s/ Philip A. Vachon Director May 31, 2000
--------------------------
Philip A. Vachon
/s/ Rob Von Oostenbrugge Director May 31, 2000
-------------------------
Rob von Oostenbrugge
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
NUMBER DESCRIPTION
<S> <C>
3.1 Amended and Restated Articles of Incorporation (filed as Exhibit 3.2
to the Company's Registration Statement on form S-1, file No. 33-56530
and incorporated herein by reference)
3.2 By-laws of the Company (filed as Exhibit 3.4 to the Company's
Registration Statement on form S-1, file No. 33-56530 and incorporated
herein by reference)
4.1 Boca Research, Inc. 1996 Non-Employee Director Stock Option Plan
4.2 First Amendment to the 1996 Non-Employee Director Stock Option Plan
4.3 Second Amendment to the 1996 Non-Employee Director Stock Option Plan
5.1 Opinion of Hutchins, Wheeler & Dittmar, A Professional Corporation, as
to legality of shares being registered and consent of Hutchins,
Wheeler & Dittmar, A Professional Corporation
23.1 Independent Auditors' Consent
23.2 Consent of Hutchins, Wheeler & Dittmar, A Professional Corporation
(included in Exhibit 5.1)
</TABLE>
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