As filed with the Securities and Exchange Commission
on April 29, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
THE PANDA PROJECT, INC.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
FLORIDA 65-0323354
- ------------------------------- ---------------------
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
901 YAMATO ROAD, BOCA RATON, FLORIDA 33431
- --------------------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
THE PANDA PROJECT, INC. 401(K) PLAN
(Full Title of the Plan)
C. Daryl Hollis
Executive Vice President and Chief Financial Officer
The Panda Project, Inc.
901 Yamato Road
BOCA RATON, FLORIDA 33431
(Name and Address of Agent For Service)
(561) 994-2300
- --------------------------------------------------------------------------------
(Telephone Number, Including Area Code, of Agent for Service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES TO AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
be REGISTERED REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE
- ------------- ------------ -------------- -------------- ----------------
<S> <C> <C> <C> <C>
Common 25,000 $4.3125(2) $107,812.50(2) $32.68
Stock, shares(1)
$.01 par
value
</TABLE>
(1) Represents shares of the Registrant's Common Stock, par value $.01 per
share (the "Common Stock"), to be issued by the Registrant in
connection with awards made under the The Panda Project, Inc. 401(k)
Plan (the "Plan"). This Registration Statement also covers such
indeterminable number of additional shares as may become issuable to
prevent dilution in the event of stock splits, stock dividends or
similar transactions pursuant to the terms of the Plan. In addition,
pursuant to Rule 416(c) under the Securities Act, this Registration
Statement covers an indeterminate amount of interests to be offered or
sold pursuant to the Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h)(1) of the Securities Act of 1933, as amended
(the "Securities Act"), and based upon the average of the high and low
prices of the Registrant's Common Stock as reported by the Nasdaq
National Market on April 23, 1997.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of the
General Instructions to the Registration Statement on Form S-8 will be sent or
given to employees of the Registrant selected to participate in the Plan as
required by Rule 428(b)(1) promulgated under the Securities Act of 1933, as
amended (the "Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant is subject to the informational and reporting
requirements of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). The following documents, which are filed with the
Commission, are incorporated in this Registration Statement by reference:
(a) The Registrant's latest annual report filed pursuant
to Section 13(a) or 15(d) of the Exchange Act or the
latest prospectus filed pursuant to Rule 424(b) under
the Securities Act that contains audited financial
statements for the latest fiscal year for which such
statements have been filed.
(b) All other reports filed pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal
year covered by the document referred to in (a)
above.
(c) The description of the Registrant's Common Stock, par
value $.01 per share (the "Common Stock"), contained
in a registration statement filed under the Exchange
Act including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange 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 by reference herein and to be part hereof from the
date of the filing of such documents.
Item 4. DESCRIPTION OF SECURITIES.
Not applicable.
Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 607.0850(1) of the Florida Business Corporation Act (the
"FBCA") provides that a Florida corporation, such as the Registrant, shall have
the power to indemnify any person who is or was 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,
-2-
<PAGE>
the best interests of the corporation and, with respect to any criminal action
of proceeding, had no reasonable cause to believe his conduct was unlawful.
Section 607.0850(2) of the FBCA provides that a Florida corporation
shall have the power to indemnify any person who is or was a party to any
proceeding by or in the right of the corporation to procure a judgment in its
favor 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 expenses and amounts paid in
settlement not exceeding, in the judgment of the board of directors, the
estimated expense of litigating the proceeding to conclusion, actually and
reasonably incurred in connection with the defense or settlement of such
proceeding, including any appeal thereof. Such indemnification shall be
authorized if 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 under Section 607.0850(2) in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable unless, and only to the extent that, the court in which
such proceeding was brought, or any other court of competent jurisdiction, shall
determine upon application that, despite the adjudication of liability but in
view of all circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such court shall deem proper.
Section 607.0850 of the FBCA further provides that, to the extent that
a director, officer, employee or agent of a corporation has been successful on
the merits or otherwise in defense of any proceeding referred to in subsection
(1) or subsection (2), or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses actually and reasonably incurred by him in
connection therewith; that indemnification provided pursuant to Section 607.0850
is not exclusive; and that the corporation may purchase and maintain insurance
on behalf of a director, officer, employee or agent of the corporation 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 Section 607.0850.
Notwithstanding the foregoing, Section 607.0850 of the FBCA provides
that indemnification of 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 his actions, or omissions to act, were material to
the cause of action so adjudicated and constitute: (a) a violation of the
criminal law, unless the director, officer, employee or agent had reasonable
cause to believe his conduct was lawful or had no reasonable cause to believe
his conduct was unlawful; (b) a transaction from which the director, officer,
employee or agent derived an improper personal benefit; (c) in the case of a
director, a circumstance under which the liability provisions regarding unlawful
distributions are applicable; or (d) willful misconduct or a conscious disregard
for the best 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.
Section 607.0831 of the FBCA provides that a director of a Florida
corporation is not personally liable for monetary damages to the corporation or
any other person for any statement, vote, decision, or failure to act, regarding
corporate management or policy, by a director, unless: (a) the director breached
or failed to perform his duties as a director, and (b) the director's breach of,
or failure to perform, those duties constitutes: (1) a violation of the criminal
law, unless the director had reasonable cause to believe his conduct was lawful
or had no reasonable cause to believe his conduct was unlawful; (2) a
transaction from which the director derived an improper personal benefit, either
directly or indirectly; (3) a circumstance under which the liability provisions
regarding unlawful distributions are applicable; (4) in a proceeding by or in
the right of someone other than the corporation or a shareholder, recklessness
or an act or omission which was committed in bad faith or with malicious purpose
or in a manner exhibiting wanton and willful disregard of human rights, safety
or property.
ARTICLES OF INCORPORATION OF THE REGISTRANT
The Articles of Incorporation of the Registrant (the "Articles")
provide that, to the fullest extent permitted by applicable law, as amended from
time to time, the Registrant will indemnify any person who
-3-
<PAGE>
is or was a party or is threatened to be made a party to an action, suit or
proceeding (whether civil, criminal, administrative or investigative) by reason
of the fact that such person is or was a director, officer, employee or agent of
the Registrant or serves or served any other enterprise at the request of the
Registrant. This indemnification includes the right to advancement of expenses
when allowed pursuant to applicable law.
In addition, the Articles provide that a director of the Registrant
shall not be personally liable to the Registrant or its shareholders for
monetary damages for breach of the director's fiduciary duty. However, the
Articles do not eliminate or limit the liability of a director for any of the
following reasons: (i) a breach of the director's duty of loyalty to the
Registrant or its shareholders; (ii) acts or omissions not in good faith or that
involve intentional misconduct or knowing violation of law; (iii) a violation
under Section 607.0834 of the FBCA (which imposes liability upon directors for
unlawful distributions); (iv) a transaction from which the director derived an
improper personal benefit; or (v) an act or omission occurring before the
effective date of the Articles.
INDEMNIFICATION
The Registrant has entered into or intends to enter into
Indemnification Agreements with its directors (collectively, the "Agreements")
which provide that each director is entitled to indemnification to the fullest
extent permitted by applicable law. Such indemnification will cover all
expenses, liabilities, judgments (including punitive and exemplary damages),
penalties, fines (including excise taxes relating to employee benefit plans and
civil penalties) and amounts paid in settlement which are incurred or imposed
upon the director if the director is a party or threatened to be made a party to
any threatened, pending or completed action, suit or proceeding of any kind,
whether civil, criminal, administrative or investigative (including actions by
or in the right of the Registrant and any preliminary inquiry or claim by any
person or authority), by reason of the fact that the director is or was a
director, officer, employee or agent of the Registrant or is or was serving at
the Registrant's request as a director, officer, employee or agent of another
corporation (including a subsidiary), partnership, joint venture, trust or other
enterprise against liability incurred in connection with such proceeding,
including any appeal thereof (collectively, the "Covered Matters"). Pursuant to
the Agreements, the directors are presumed to be entitled to indemnification
irrespective of whether the Covered Matter involves allegations of intentional
misconduct, alleged violations of Section 16(b) of the Exchange Act, alleged
violations of Section 10(b) of the Exchange Act (including Rule 10b-5
thereunder), breach of the director's fiduciary duties (including duties of
loyalty or care) or any other claim.
In addition to the foregoing, the Company maintains a director and
officer liability insurance policy insuring directors and officers of the
Registrant against certain liabilities.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
The Exhibit Index immediately preceding the exhibits and the exhibits
listed thereon are incorporated herein by reference. The Registrant will submit
or has submitted the Plan and any amendment thereto to the Internal Revenue
Service ("IRS") in a timely manner and has made or will make all changes
required by the IRS in order to qualify the Plan under Section 401 of the
Internal Revenue Code.
Item 9. UNDERTAKINGS.
1. The Registrant undertakes:
(a) 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;
-4-
<PAGE>
(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 (i) and (ii) do not apply if the Registration
Statement is on Form S-3 or Form S-8, and the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in the Registration
Statement.
(b) 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.
(c) 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 Registrant hereby undertakes that for purposes of determining
any liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange 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 in the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the
Securities 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
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.
-5-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Boca Raton, Florida, on the 29th day of April, 1997.
THE PANDA PROJECT, INC.
By: /s/ STANFORD W. CRANE, JR.
--------------------------
Stanford W. Crane, Jr.
President
POWER OF ATTORNEY
We, the undersigned officers and directors of The Panda Project, Inc.,
hereby severally constitute Stanford W. Crane, Jr. and C. Daryl Hollis, and any
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
subsequent amendments to said Registration Statement, and generally to do all
such things in our names and behalf in our capacities as officers and directors
to enable The Panda Project, Inc. to comply with all requirements of the
Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by said attorneys, or any of them, to said
Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ STANFORD W. CRANE, JR.
________________________ Chief Executive Officer, ) April 29, 1997
Stanford W. Crane, Jr. President and Director )
(Principal Executive )
Officer) )
/s/ C. DARYL HOLLIS )
________________________ Executive Vice President ) April 29, 1997
C. Daryl Hollis and Chief Financial Officer)
(Principal Financial and )
Accounting Officer) )
/s/ JAMES T.A. WOODER )
________________________ Director ) April 29, 1997
James T.A. Wooder )
)
)
/s/ CLAUD L. GINGRICH
________________________ Director ) April 29, 1997
Claud L. Gingrich )
)
/s/ RAO R. TUMMALA )
________________________ Director ) April 29, 1997
Rao R. Tummala )
</TABLE>
-6-
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, as amended,
THE PANDA PROJECT, INC. 401(k) Plan has duly caused this Registration Statement
to be signed on its behalf by the undersigned, thereunto duly authorized, in
Boca Raton, Florida, on the 29th day of April, 1997.
THE PANDA PROJECT, INC. 401(k) PLAN
By: /s/ C. DARYL HOLLIS
-----------------------------
C. Daryl Hollis
Executive Vice President
of The Panda Project Inc.,
Plan Sponsor
<TABLE>
<CAPTION>
EXHIBIT INDEX
-------------
EXHIBIT DESCRIPTION OF EXHIBIT PAGE
- ------- ---------------------- ----
<S> <C> <C> <C> <C>
4.1 -- Amended and Restated Articles of
Incorporation of the Company, as amended
(filed as Exhibit 3.1 to the
Company's Registration Statement on
Form S-3 (File No. 333-14931))........................... *
4.2 -- Amended and Restated By-Laws of the
Company (filed as Exhibit 3.2 to the
Company's Registration Statement on
Form SB-2 (File No. 33-76694-A))......................... *
4.3 -- Specimen Certificate of Common Stock of
the Company (filed as Exhibit 4.1 to the
Company's Registration Statement on
Form SB-2 (File No. 33-76694-A))......................... *
5.1 -- Opinion of Holland & Knight..............................
23.1 -- Consent of Holland & Knight (included in
Exhibit 5.1).............................................
23.2 -- Consent of Price Waterhouse LLP..........................
24.1 -- Power of Attorney (included on page 6).................
</TABLE>
- --------------------
* Incorporated herein by reference
-7-
<PAGE>
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
5.1 Opinion of Holland & Knight
23.2 Consent of Price Waterhouse LLP
EXHIBIT 5.1
HOLLAND & KNIGHT
[LETTERHEAD]
April 28, 1997
The Panda Project, Inc.
901 Yamato Road
Boca Raton, FL 33431
RE: THE PANDA PROJECT, INC. (THE "COMPANY") - REGISTRATION
STATEMENT ON FORM S-8
Gentlemen:
You have requested our opinion in connection with the above-referenced
Registration Statement, (the "Registration Statement"), in connection with the
registration for sale of an aggregate of 25,000 shares (the "Shares") of the
common stock, $.01 par value per share, of the Company (the "Common Stock"),
which may be issued by the Company to participants in The Panda Project, Inc.
401(k) Plan (the "Plan").
We have reviewed copies of the Articles of Incorporation and Bylaws of the
Company, and have examined such corporate documents and records and other
certificates, and have made such investigations of law, as we have deemed
necessary in order to render the opinion hereinafter set forth.
Based upon and subject to the foregoing, we are of the opinion that the Shares
are duly authorized, and, assuming the Company receives greater than par value
for the Shares, when the Shares are fully paid for in accordance with the terms
and conditions set forth in the Plan, such Shares will be, assuming no changes
in the applicable law or pertinent facts, validly issued, fully paid and
nonassessable.
<PAGE>
The Panda Project, Inc.
April 28, 1997
Page 2
We hereby consent to the use of this opinion 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.
Very truly yours,
Holland & Knight
By: /s/ STEVEN SONBERG
--------------------------
Steven Sonberg
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated June 24, 1996, appearing on page F-2
of The Panda Project Inc.'s Annual Report on Form 10-K for the year ended March
31, 1996.
/s/ PRICE WATERHOUSE LLP
- ------------------------
Price Waterhouse LLP
Fort Lauderdale, Florida
April 25, 1997
