<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 30, 1997
REGISTRATION NO. 333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PROSOURCE, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 65-0335019
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
1500 SAN REMO AVENUE
CORAL GABLES, FL 33146
(305) 740-1000
(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrant's Principal Executive Offices)
AMENDED AND RESTATED MANAGEMENT OPTION PLAN (1995)
1996 STOCK OPTION PLAN
(Full Title of the Plan)
DAVID R. PARKER
CHAIRMAN OF THE BOARD
PROSOURCE, INC.
1500 SAN REMO AVENUE
CORAL GABLES, FL 33146
(305) 740-1000
(Name, Address, Including Zip Code, and Telephone
Number, Including Area Code, of Agent For Service)
Copy to:
JOEL I. GREENBERG, ESQ.
KAYE, SCHOLER, FIERMAN, HAYS & HANDLER, LLP
425 PARK AVENUE
NEW YORK, NEW YORK 10022
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Securities to Amount to be Proposed Maximum Proposed Maximum Amount of
be Registered Registered Offering Price Per Aggregate Offering Registration Fee
Share Price
<S> <C> <C> <C> <C>
Class A Common 328,500 Shares (1) $ 10.15 (4) $ 3,334,275 (4) $1,010.39
Stock, $.01 par value 384,500 Shares (2) $ 14.00 (4) $ 5,383,000 (4) $1,631.21
per share 165,500 Shares (3) $6.8125 (5) $1,127,468.75(5) $ 341.66
Class B Common 328,500 Shares (1) $ 10.15 (4) $ 3,334,275 (4) $1,010.39
Stock, $.01 par value 384,500 Shares (2) $ 14.00 (4) $ 5,383,000 (4) $1,631.21
per share 165,500 Shares (3) $6.8125 (5) $1,127,468.75(5) $ 341.66
</TABLE>
(1) Shares reserved for issuance pursuant to options previously granted
under the Amended and Restated Management Option Plan (1995). The
shares issuable pursuant to such options consist of shares of Class B
Common Stock which are convertible into Class A Common Stock on a
one-to-one basis at any time at the option of the holder thereof and in
certain other circumstances. No additional options will be granted
under this plan.
(2) Shares reserved for issuance pursuant to options previously granted
under the 1996 Stock Option Plan. The shares issuable pursuant to such
options consist of shares of Class B Common Stock which are convertible
into Class A Common Stock on a one-to-one basis at any time at the
option of the holder thereof and in certain other circumstances.
(3) Additional shares reserved for issuance pursuant to options to be
granted under the 1996 Stock Option Plan. The shares issuable pursuant
to such options consist of shares of Class B Common Stock which are
convertible into Class A Common Stock on a one-to-one basis at any time
at the option of the holder thereof and in certain other circumstances.
(4) Based on the average exercise price for options previously granted.
Estimated solely for the purpose of calculating the registration fee.
(5) The offering price has been computed pursuant to Rules 457(c) and
457(h)(1) promulgated under the Securities Act of 1933, as amended, on
the basis of the high and low prices of the Class A Common Stock on the
NASDAQ National Market as of a date within five business days prior to
the filing of this Registration Statement (September 26, 1997).
Estimated solely for the purpose of calculating the registration fee.
<PAGE> 3
PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, or portions thereof, filed with the
Securities and Exchange Commission (the "Commission"), are incorporated herein
by reference:
1. Annual Report on Form 10-K of ProSource, Inc. (the
"Company") for the fiscal year ended December 28, 1996 filed with the Commission
on March 28, 1997 (the "1996 Annual Report on Form 10-K").
2. Quarterly report on Form 10-Q of the Company for the fiscal
quarter ended March 29, 1997 filed with the Commission on May 13, 1997.
3. Quarterly report on Form 10-Q of the Company for the fiscal
quarter ended June 28, 1997 filed with the Commission on August 11, 1997.
4. The description of the Class A common stock, $.01 par value
per share, of the Company (the "Class A Common Stock") is contained under Item
1. "Description of Registrant's Securities to be Registered" in the Company's
Registration Statement on Form 8-A under the Securities Exchange Act of 1934, as
amended, filed with the Commission on November 5, 1996.
All documents subsequently filed by the Company 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 have been
sold or which deregisters all securities then remaining unsold, shall be deemed
incorporated by reference herein and to be a part hereof from the date of filing
of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
The description of the Class B common stock, $.01 par value
per share, of the Company (the "Class B Common Stock") is contained under the
heading "Description of Capital Stock" on pages 56-57 of the Company's final
prospectus, dated November 11, 1996, filed with the Commission on November 12,
1996 pursuant to Rule 424(b) promulgated under the Securities Act of 1933, as
amended (the "Securities Act").
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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<PAGE> 4
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As authorized by Section 102(b)(7) of the Delaware General Corporation
Law (the "Delaware Law"), Article Eighth of the Company's Restated Certificate
of Incorporation provides that directors of the Company shall not be personally
liable to the Company or its stockholders for monetary damages for breaches of
their fiduciary duty of care as a director, except that such provision does not
limit or eliminate the liability of any director (i) for any breach of the
director's duty of loyalty to the Company or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or knowing
violation of law, (iii) in respect of certain unlawful dividend payments or
stock redemptions or repurchases or (iv) for any transactions from which the
director derived an improper personal benefit. In addition, this provision does
not limit directors' liability under federal securities laws.
Section 145 of the Delaware Law provides, in summary, that directors
and officers of Delaware corporations are entitled, under certain circumstances,
to be indemnified against all expenses and liabilities (including attorney's
fees) incurred by them as a result of suits brought against them in their
capacity as a director or officer, if they acted in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, if they had no
reasonable cause to believe their conduct was unlawful; provided, that no
indemnification may be made against expenses in respect of any claim, issue or
matter as to which they shall have been adjudged to be liable to the Company,
unless and only to the extent that the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, they are fairly and
reasonably entitled to indemnity for such expenses which the court shall deem
proper. Any such indemnification may be made by the Company only as authorized
in each specific case upon a determination by the stockholders or disinterested
directors that indemnification is proper because the indemnitee has met the
applicable standard of conduct. Article Seventh of the Company's Restated
Certificate of Incorporation entitles officers and directors of the Company to
indemnification to the fullest extent permitted by Section 145 of the Delaware
Law, as the same may be supplemented from time to time.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
II-2
<PAGE> 5
ITEM 8. EXHIBITS.
The following are filed as exhibits to this registration
statement:
Exhibits Description
- -------- -----------
4.1 Amended and Restated Management Option Plan (1995). Incorporated by
reference from Exhibit 10.28 to Amendment No. 4 to the Company's
Registration Statement on Form S-1 under the Securities Act filed
with the Commission on November 6, 1996 (Registration No.
333-11499).
4.2 1996 Stock Option Plan. Incorporated by reference from Exhibit 10.29
to Amendment No. 4 to the Company's Registration Statement on Form
S-1 under the Securities Act filed with the Commission on November
6, 1996 (Registration No. 333-11499).
4.3 Restated Certificate of Incorporation of ProSource, Inc.
Incorporated by reference from Exhibit 3.1 to the Company's 1996
Annual Report on Form 10-K.
4.4 Amended and Restated By-laws of ProSource, Inc., as amended.
Incorporated by reference from Exhibit 3.1 to the Company's
quarterly report on Form 10-Q for the fiscal quarter ended June 28,
1997 filed with the Commission on August 11, 1997.
5.1 Opinion of Messrs. Kaye, Scholer, Fierman, Hays & Handler, LLP.
23.1 Consent of Independent Public Accountants.
23.2 Consent of Messrs. Kaye, Scholer, Fierman, Hays & Handler, LLP
contained in such firm's opinion filed as Exhibit 5.1 hereto.
24.1 Power of Attorney. Included on the signature page at Page II-6.
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
A. To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
1. To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, unless the information
required to be included in such post-effective amendment is
contained in a periodic report filed with or furnished to the
Securities and Exchange Commission by the registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 and incorporated herein by reference.
2. 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
II-3
<PAGE> 6
set forth in the registration statement, unless the
information required to be included in such post-effective
amendment is contained in a periodic report filed with or
furnished to the Securities and Exchange Commission by the
registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 and incorporated herein by
reference. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) (Section 230.424(b) of this chapter), if, in the
aggregate, the changes in volume and price represent no more
than a 20 percent change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table
in the effective registration statement.
3. 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.
B. 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.
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.
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 Sections 13(a) or 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 this
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.
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.
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<PAGE> 7
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 Coral Gables, State of Florida, on this 29th day
of September, 1997.
PROSOURCE, INC.
By: /s/ David R. Parker
------------------------------
Name: David R. Parker
Title: Chairman of the Board
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<PAGE> 8
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. Each person whose signature appears
below hereby authorizes each of David R. Parker, Thomas C. Highland and William
F. Evans, as attorney-in-fact, to sign and file on his behalf, individually and
in each capacity stated below, any pre-effective or post-effective amendment
hereto.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ David R. Parker Chairman of the Board September 29, 1997
- ----------------------------- of Directors
David R. Parker (principal executive officer)
/s/ Thomas C. Highland President, Chief Executive September 29, 1997
- ----------------------------- Officer and Director
Thomas C. Highland
/s/ Daniel J. Adzia Vice Chairman, Chief Marketing September 29, 1997
- ----------------------------- Officer and Director
Daniel J. Adzia
/s/ William F. Evans Executive Vice President, September 29, 1997
- ----------------------------- Chief Financial Officer
William F. Evans (principal financial officer)
/s/ Marcelino Iturrey Vice President, Controller September 29, 1997
- ----------------------------- (principal accounting officer)
Marcelino Iturrey
/s/ Michael Carpenter Director September 29, 1997
- -----------------------------
Michael Carpenter
/s/ C. Lee Johnson Director September 29, 1997
- -----------------------------
C. Lee Johnson
/s/ Anthony R. Melman Director September 29, 1997
- -----------------------------
Anthony R. Melman
/s/ Anthony Munk Director September 29, 1997
- -----------------------------
Anthony Munk
/s/ Gerald W. Schwartz Director September 29, 1997
- -----------------------------
Gerald W. Schwartz
/s/ R. Geoffrey P. Styles Director September 29, 1997
- -----------------------------
R. Geoffrey P. Styles
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description Page
- ------- ----------- ----
<S> <C> <C>
5.1 Opinion of Kaye, Scholer, Fierman, Hays & Handler, LLP 1
23.1 Consent of Independent Public Accountants 2
</TABLE>
<PAGE> 1
EXHIBIT 5.1
[KAYE, SCHOLER, FIERMAN, HAYS & HANDLER, LLP LETTERHEAD]
September 30, 1997
(212) 836-8000
ProSource, Inc.
1500 San Remo Avenue
Coral Gables, Florida 33146
Ladies and Gentlemen:
We have acted as counsel to ProSource, Inc., a Delaware corporation
(the "Company"), in connection with its Registration Statement on Form S-8 (the
"Registration Statement"), filed pursuant to the Securities Act of 1933, as
amended (the "Act"), relating to the proposed offering by the Company of (a) up
to an aggregate of 328,500 shares of (i) the Company's Class B common stock,
$.01 par value per share (the "Class B Common Stock"), pursuant to the exercise
of options issued under its Amended and Restated Management Option Plan (1995)
(the "1995 Plan"), and (ii) the Company's Class A common stock, $.01 par value
per share (the "Class A Common Stock"), into which each share of Class B Common
Stock is convertible on a one-to-one basis, and (b) up to an aggregate of
550,000 shares of (i) the Company's Class B Common Stock pursuant to the
exercise of options issued or issuable under its 1996 Stock Option Plan (the
"1996 Plan"), and (ii) the Company's Class A Common Stock into which each share
of Class B Common Stock is convertible on a one-to-one basis.
In that connection, we have reviewed the Company's Restated
Certificate of Incorporation, its Amended and Restated By-Laws, as amended to
date, resolutions of its Board of Directors and stockholders and other such
documents and records as we have deemed appropriate.
On the basis of such review and having regard to legal considerations
which we deem to be relevant, it is our opinion that the Class B Common Stock
and the Class A Common Stock to be issued by the Company pursuant to the 1995
Plan and 1996 Plan, upon issuance in accordance with the terms of such plans,
will be duly and validly authorized and issued, fully paid and non-assessable.
We hereby consent to the use of this opinion as an Exhibit to the
Registration Statement. In giving this opinion, we do not thereby admit that we
are within the category of persons whose consent is required under Section 7 of
the Act or the Rules and Regulations of the Securities and Exchange Commission.
Very truly yours,
/s/ KAYE, SCHOLER, FIERMAN, HAYS & HANDLER, LLP
-------------------------------------------
Kaye, Scholer, Fierman, Hays & Handler, LLP
1
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our report dated
February 12, 1997 included in ProSource Inc.'s Annual Report on Form 10-K for
the year ended December 28, 1996 and to all references to our Firm included in
this Registration Statement on Form S-8.
/s/ KPMG PEAT MARWICK LLP
---------------------
KPMG Peat Marwick LLP
Miami, Florida
September 30, 1997
2
