<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 1, 1999
REGISTRATION NO. 333-______________
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------
SMITH-GARDNER & ASSOCIATES, INC.
(Exact Name of Registrant as Specified in its Governing Instruments)
FLORIDA 65-0090038
(State or Other Jurisdiction of Incorporation or (I.R.S. Employer
Organization) Identification No.)
1615 SOUTH CONGRESS AVENUE
DELRAY BEACH, FLORIDA 33445-6368
(561) 265-2700
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
MR. GARY G. HEGNA
PRESIDENT AND CHIEF EXECUTIVE OFFICER
SMITH-GARDNER & ASSOCIATES, INC.
1615 SOUTH CONGRESS AVENUE
DELRAY BEACH, FLORIDA 33445-6368
(561) 265-2700
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
STOCK OPTION PLAN
AMENDED AND RESTATED 1998 STOCK OPTION PLAN
(Full Title of the Plan)
---------
COPIES OF ALL COMMUNICATIONS TO:
BRADLEY D. HOUSER
AKERMAN, SENTERFITT & EIDSON, P.A.
SUNTRUST INTERNATIONAL CENTER
ONE S.E. 3RD AVENUE, 28TH FLOOR
MIAMI, FLORIDA 33131-1704
(305) 374-5600
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================================================
PROPOSED
MAXIMUM AMOUNT OF
TITLE OF AMOUNT TO PROPOSED MAXIMUM AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED BE REGISTERED (2) OFFERING PRICE PER SHARE (3) OFFERING PRICE (3) FEE
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.01 per 2,350,000 shares $12.00 $28,200,000 $7,840
share (1)
========================================================================================================================
</TABLE>
(1) Includes 850,000 shares issuable under the Smith-Gardner & Associates,
Inc. Stock Option Plan adopted in 1996 and 1,500,000 shares issuable
under the Smith-Gardner & Associates, Inc. Amended and Restated 1998
Stock Option Plan (collectively the "Plans").
(2) This Registration Statement also covers any additional shares that may
hereafter become issuable as a result of the adjustment provisions of
the Plans.
(3) Estimated solely for the purpose of calculating the registration fee
in accordance with Rule 457 under the Securities Act of 1933, as
amended.
Total Number of Sequentially Numbered Pages: _____
Exhibit Index on Sequentially Numbered Page: ______
===============================================================================
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
The documents containing the information specified in Part I of Form
S-8 will be sent or given to participants in the Stock Option Plan adopted in
1996 and the Amended and Restated 1998 Stock Option Plan (collectively the
"Plans") of Smith-Gardner & Associates, Inc. (the "Company") as specified by
Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act").
Such documents are not being filed with the Commission, but constitute
(along with the documents incorporated by reference into the Registration
Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act. The documents incorporated
by reference into the Registration Statement pursuant to Item 3 of Part II
hereof will be available to participants in the Plans, without charge, upon
written or oral request. Any such request should be directed to Martin K.
Weinbaum, Chief Financial Officer, Smith-Gardner & Associates, Inc., 1615 South
Congress Avenue, Delray Beach, Florida 33445-6368, Telephone (561) 265-2700.
2
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
(Not Required in Prospectus)
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, which have been filed by Smith-Gardner &
Associates, Inc. (the "Company") with the Commission pursuant to the Securities
Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
are incorporated herein by reference:
(a) The Company's Final Prospectus dated January 29, 1999, which
forms part of the Company's Registration Statement on Form
S-1 (Regis. No. 333-63125); and
(b) The description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-A filed with
the Commission on January 26, 1999, and any amendment or
report filed with the Commission for the purpose of updating
such description.
In addition, all documents filed by the Registrant with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the
date of this Registration Statement and prior to the termination of the
offering shall be deemed to be incorporated by reference into this Registration
Statement and to be a part hereof from the date of the filing of such document
with the Commission. Any statement contained in a document incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
the Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or superseded such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of the Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable. The class of securities to be offered is registered
under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Articles of Incorporation and the Company's Bylaws
provide that the Company shall, to the fullest extent permitted by law,
indemnify all directors of the Company, as well as any officers or employees of
the Company to whom the Company has agreed to grant indemnification.
Section 607.0850(1) of the Florida Business Corporation Act (the
"FBCA") provides that a Florida corporation, such as the Company, shall have
the power to 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 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,
3
<PAGE> 4
the best interests of the corporation and, with respect to any criminal action
or 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 was or is 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 this subsection 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 607.850 of the FBCA further provides that: (i) 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 proceeding referred
to in subsection (1) or subsection (2), or in defense of any claim, issue, or
matter therein, he shall be indemnified against expense actually and reasonably
incurred by him in connection therewith; (ii) indemnification provided pursuant
to Section 607.0850 is not exclusive; and (iii) the corporation may purchase
and maintain insurance on behalf of a director or officer 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 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 his actions, or omissions to act, were material
to the cause of action so adjudicated and constitute: (i) 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; (ii) a transaction from which the director, officer,
employee or agent derived an improper personal benefit; (iii) in the case of a
director, a circumstance under which the liability provisions regarding
unlawful distributions are applicable; or (iv) 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: (i) the
director breached or failed to perform his duties as a director; and (ii) the
director's breach of, or failure to perform, those duties constitutes: (A) a
violation of 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; (B) a transaction from which the director derived an improper
personal benefit, either directly or indirectly; (C) a circumstance under which
the liability provisions regarding unlawful distributions are applicable; (D)
in a proceeding by or in the right of the corporation to procure a judgment in
its favor or by or in the right of a shareholder, conscious disregard for the
best interest of the corporation, or willful misconduct; or (E) 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.
4
<PAGE> 5
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits filed as part of this Registration Statement are as
follows:
EXHIBIT
NUMBER DESCRIPTION
------ -----------
4.1 -- Amended and Restated Articles of Incorporation of
the Company (incorporated by reference to Exhibit
3.1 of the Company's Registration Statement on Form
S-1 -- Regis. No. 333-63125).
4.2 -- Form of Amended and Restated Articles of
Incorporation of the Company (incorporated by
reference to Exhibit 3.2 of the Company's
Registration Statement on Form S-1 -- Regis. No.
333-63125).
4.3 -- By-Laws of the Company, as amended (incorporated by
reference to Exhibit 3.3 of the Company's
Registration Statement on Form S-1 -- Regis. No.
333-63125).
4.4 -- Form of By-Laws of the Company, as amended
(incorporated by reference to Exhibit 3.4 of the
Company's Registration Statement on Form S-1 --
Regis. No. 333-63125).
4.5 -- Form of certificate of Common Stock of the Company
(incorporated by reference to Exhibit 4.1 of the
Company's Registration Statement on Form S-1 --
Regis. No. 333-63125).
5.1 -- Opinion of Akerman, Senterfitt & Eidson, P.A.
10.1 -- Smith-Gardner & Associates, Inc. Stock Option Plan
adopted in 1996 (incorporated by reference to
Exhibit 10.1 of the Company's Registration Statement
on Form S-1 -- Regis. No. 333-63125).
10.2 -- Smith-Gardner & Associates, Inc. Amended and Restated
1998 Stock Option Plan (incorporated by reference to
Exhibit 10.3 of the Company's Registration Statement
on Form S-1 -- Regis. No. 333-63125).
23.1 -- Consent of KPMG LLP.
23.2 -- Consent of Akerman, Senterfitt & Eidson, P.A.
(included in opinion filed as Exhibit 5.1).
24.1 -- Powers of Attorney (included as part of the
signature page hereto).
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
5
<PAGE> 6
A. (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.
(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; and
(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)(1)(i) and (1)(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 or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered herein, 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 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 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.
C. 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 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 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 of whether such indemnification by it is
against public policy and as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
6
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant has duly caused this Registration Statement on Form S-8
to be signed on its behalf by the undersigned, thereunto duly approved, in the
City of Delray Beach, State of Florida, on the 1st day of February, 1999.
NATIONSRENT, INC.
By: /s/ Gary G. Hegna
-------------------------------------
Gary G. Hegna
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Gary G. Hegna and Martin K.
Weinbaum his true and lawful attorneys-in-fact, each acting alone, with full
powers of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities to sign any or all amendments, including any
post-effective amendments, to this registration statement, and to file the
same, with exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission, hereby ratifying and confirming all
that said attorneys-in-fact or their substitutes, each acting alone, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 has been signed by the following persons in
their capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Gary G. Hegna
- ---------------------- President and Chief Executive Officer February 1, 1999
Gary G. Hegna (Principal Executive Officer)
/s/ Martin K. Weinbaum Vice President - Finance, Chief
- ---------------------- Financial Officer, Secretary and February 1, 1999
Martin K. Weinbaum Treasurer (Principal Financial
Officer)
/s/ Alan Gardner
- ---------------------- Executive Vice President-Advanced February 1, 1999
Alan Gardner Technologies and Co-chairman of the
Board
s/ Wilburn Smith
- ---------------------- Executive Vice President-sales and February 1, 1999
Wilburn Smith Co-chairman of the Board
/s/ Francis H. Zenie
- ---------------------- Director February 1, 1999
Francis H. Zenie
</TABLE>
7
<PAGE> 1
EXHIBIT 5.1
Akerman, Senterfitt & Eidson, P.A.
Attorneys at Law
SunTrust International Center
28th Floor
One S.E. Third Avenue
Miami, Florida 33131-1704
(305) 374-5600
Telecopy (305) 374-5095
January 29, 1999
Smith-Gardner & Associates, Inc.
1615 South Congress Avenue
Delray Beach, FL 33445-6368
Ladies and Gentlemen:
We have acted as counsel to Smith-Gardner & Associates, Inc., a
Florida corporation (the "Company"), with respect to the filing by the Company
with the Securities and Exchange Commission under the Securities Act of 1933,
as amended, of a Registration Statement on Form S-8 (the "Registration
Statement") covering the issuance of up to 2,350,000 shares of the Company's
shares of Common Stock, par value $0.01 per share (the "Shares").
Based on our review of the Company's organizational documents, the
option plans pursuant to which the Shares are issuable and such other documents
and records as we have deemed necessary and appropriate, we are of the opinion
that:
1. The Company is duly formed and validly existing as a
corporation in good standing under the laws of the State of
Florida.
2. When the Shares are properly authorized for issuance, the
Shares will have been duly authorized for issuance, and, when
thereafter sold, issued and paid for as contemplated by the
Registration Statement, the Shares will have been validly and
legally issued and will be fully paid and nonassessable under
the laws of the State of Florida.
We consent to the filing of this opinion of counsel as Exhibit 5.1 to
the Registration Statement.
Very truly yours,
AKERMAN, SENTERFITT & EIDSON, P.A.
/s/ Akerman, Senterfitt & Eidson, P.A.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
Smith Gardner and Associates, Inc.
We consent to incorporation by reference in the registration statement on Form
S-8 of Smith Gardner and Associates, Inc. of our report dated January 6, 1999,
relating to the consolidated balance sheets of Smith Gardner and Associates and
subsidiaries as of December 31, 1996 and 1997 and September 30, 1998, and the
related consolidated statements of operations, redeemable preferred stock and
stockholders' equity (deficit), and cash flows for each of the years in the
three-year period ended December 31, 1997 and nine months ended September 30,
1998, and the related financial statement schedule, which report appears in the
Company's Registration Statement on Form S-1 dated January 28, 1999.
/s/ KPMG LLP
Ft. Lauderdale, Florida
January 29, 1999
