As filed with the Securities and Exchange Commission on February 12, 1999
Registration No. 333-_______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PROGRAMMER'S PARADISE, INC.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 13-3136014
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1157 Shrewsbury Avenue
Shrewsbury, New Jersey 07702
(732) 389-8950
------------------------------------------------------
(Address of Principal Executive Offices)
PROGRAMMER'S PARADISE, INC. 1986 STOCK OPTION PLAN
PROGRAMMER'S PARADISE, INC. 1995 STOCK PLAN
PROGRAMMER'S PARADISE, INC. 1995 NON-EMPLOYEE DIRECTOR PLAN
------------------------------------------------------
(Full Title of the Plans)
William H. Willett
President and Chief Executive Officer
Programmer's Paradise, Inc.
1157 Shrewsbury Avenue
Shrewsbury, New Jersey 07702
(732) 389-8950
------------------------------------------------------
(Name, Address and Telephone Number, including area code, of Agent for Service)
Copy to:
Lawrence M. Bell, Esq.
Golenbock, Eiseman, Assor & Bell
437 Madison Avenue
New York, New York 10022
(212) 907-7300
CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed maximum
Title of securities to be Amount to be offering price per aggregate offering Amount of
registered registered(1) share(2) price(2) registration fee(2)
------------------------- ------------- ------------------ ------------------ -------------------
Common Stock, par
value $.01 per share 1,344,951 $14.625 $19,669,908 $5,468.23
- ----------
(1) Represents (i) 19,951 shares issuable upon the exercise of options granted
under the Programmer's Paradise, Inc.'s 1986 Stock Option Plan; (ii)
1,137,500 shares issuable upon the exercise of options granted or to be
granted under the Programmer's Paradise, Inc.'s 1995 Stock Plan; and (iii)
187,500 shares issuable upon the exercise of options granted or to be
granted under the Programmer's Paradise, Inc.'s 1995 Non-Employee Director
Plan (collectively, the "Plans"), plus such indeterminate number of shares
pursuant to Rule 416 as may be issued in respect of stock splits, stock
dividends and similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) promulgated under the Securities Act of 1933 (the
"Securities Act"), based upon the average of the high and low prices per
share of the Common Stock (such average being $14.625) as reported on The
Nasdaq Stock Market/Nasdaq National Market on February 5, 1999.
ii
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
EXPLANATORY NOTE
----------------
As permitted by the rules of the Securities and Exchange Commission, this
Registration Statement omits the information specified in Part I of Form S-8.
The documents containing the information specified in Part I will be delivered
to the participant in the plans covered by this Registration Statement as
required by Rule 428(b) promulgated under the Securities Act of 1933, as
amended. Such documents are not being filed with the Securities and Exchange
Commission as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424 of such Act.
The Prospectus that is being filed with this Registration Statement has
been prepared in accordance with the requirements of General Instruction C to
Form S-8 and Part I of Form S-3, and may be used for reofferings of shares of
Common Stock of the Company identified in such Prospectus that constitute
"control securities" and "restricted securities" (within the meaning of such
General Instruction C).
I-1
REOFFER PROSPECTUS
COMMON STOCK (PAR VALUE $.01 PER SHARE)
PROGRAMMER'S PARADISE, INC.
1157 SHREWSBURY AVENUE
SHREWSBURY, NEW JERSEY 07702
(732) 389-8950
1,344,951 SHARES OF COMMON STOCK
UNDER
PROGRAMMER'S PARADISE, INC.
1986 STOCK OPTION PLAN
1995 STOCK PLAN AND
1995 NON-EMPLOYEE DIRECTOR PLAN
The selling security holders identified in this prospectus may sell, from
time to time, up to 1,344,951 shares of our common stock. The selling security
holders may acquire these shares in the future pursuant to certain stock options
that we have granted to them. These shares may be acquired by the selling
security holders, and sold by them, over an extended period of time.
The selling security holders may sell shares:
o through the Nasdaq National Market System, in the over-the-counter
market, in privately negotiated transactions or otherwise;
o directly to purchasers or through agents, brokers, dealers or
underwriters; and
o at market prices prevailing at the time of sale, at prices related to
such prevailing market prices, or at negotiated prices.
Our common stock is traded on the Nasdaq National Market System under the
symbol "PROG."
INVESTING IN OUR SECURITIES INVOLVES CERTAIN RISKS. SEE "RISK FACTORS"
BEGINNING ON PAGE 3.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is February 12, 1999
TABLE OF CONTENTS
Page
Where You Can Find More Information...........................................3
Incorporation by Reference....................................................3
The Company...................................................................4
Risk Factors..................................................................4
Competition..............................................................4
Quarterly Fluctuations and Seasonality...................................5
Foreign Operations.......................................................5
Privacy Concerns With Respect to List Development and Maintenance........5
Management Information Systems...........................................5
Increases in Postage, Shipping and Paper Costs...........................5
Changing Methods of Software Distribution................................6
Dependence on Vendors....................................................6
Rapid Changes in Software Products and Risk of Inventory Obsolescence....7
Stock Volatility.........................................................7
Acquisitions Strategy....................................................7
State Sales Tax Collection...............................................7
Year 2000 Compliance.....................................................8
Use of Proceeds...............................................................8
Selling Stockholders..........................................................8
Plan of Distribution..........................................................9
Legal Matters.................................................................9
Experts.......................................................................9
2
CAUTIONARY NOTICE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements contained in, or incorporated by reference in, this
prospectus are forward-looking in nature. Such statements can be identified by
the use of forward-looking terminology such as "believes," "expects," "may,"
"will," "should," or "anticipates" or the negative thereof or comparable
terminology, or by discussions of strategy. You are cautioned that our business
and operations are subject to a variety of risks and uncertainties and,
consequently, our actual results may materially differ from those projected by
any forward-looking statements. Certain of such risks and uncertainties are
discussed below under the heading "Risk Factors." We make no commitment to
revise or update any forward-looking statements in order to reflect events or
circumstances after the date any such statement is made.
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements, and other information with the SEC. Such
reports, proxy statements, and other information can be read and copied at the
SEC's Public Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549.
Please call the SEC at 1-800-SEC-0330 for further information on the Public
Reference Room. The SEC maintains an internet site at http://www.sec.gov that
contains reports, proxy and information statements and other information
regarding issuers that file electronically with the SEC, including the Company.
INCORPORATION BY REFERENCE
The SEC allows us to "incorporate by reference" the documents that we file
with the SEC. This means that we can disclose important information to you by
referring you to those documents. Any information we incorporate in this manner
is considered part of this prospectus. Any information we file with SEC after
the date of this prospectus will automatically update and supersede the
information contained in this prospectus.
We incorporate by reference the following documents that we have filed with
the SEC and any filings that we will make with the SEC in the future under
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until
this offering is completed:
(1) the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997;
(2) the Company's Quarterly Report on Form 10-Q for the three months ended
March 31, 1998;
(3) the Company's Quarterly Report on Form 10-Q for the three and six
months ended June 30, 1998;
(4) the Company's Quarterly Report on Form 10-Q for the three and nine
months ended September 30, 1998;
(5) the Company's Notice of Annual Meeting of Stockholders and Proxy
Statement, dated April 30, 1998, for its Annual Meeting of Stockholders held on
June 16, 1998; and
(6) the description of the Common Stock, which is registered under Section
12 of the Exchange Act, contained in the Company's Registration Statement on
Form 8-A dated July 18, 1995.
We will provide you without charge, upon written or oral request, a copy of
any or all of the documents which are incorporated by reference into this
prospectus. Requests should be directed to: Programmer's Paradise, Inc., 1157
Shrewsbury Avenue, Shrewsbury, New Jersey 07702, Attention: Chief Executive
Officer. The Company's telephone number is: (732) 389-8950.
3
PROGRAMMER'S PARADISE, INC.
GENERAL
We are an international marketer of software targeting the software
development professional and information technology professional within
enterprise organizations. We operate principally through five distribution
channels -- internet, catalog, direct sales, telemarketing and wholesale
distribution. Internet sales encompass our international web sites. Catalog
operations include worldwide catalog sales, advertising and publishing. Direct
sales operations include Programmer's Paradise Corporate Sales in the United
States, ISP*D International Software Partners GmbH in Munich, Germany, a wholly
owned subsidiary, ISP*F International Software Partners France SA, a
majority-owned subsidiary in Paris, France, and Logicsoft Holding BV, a
wholly-owned subsidiary in the Netherlands. Telemarketing operations are
presently conducted in the United States, Germany and the United Kingdom.
Wholesale operations include distribution to dealers and large resellers through
Lifeboat Distribution Inc. in the United States and Lifeboat Associates Italia
Srl in Milan, Italy, also our subsidiaries. We are using our European-based
operations as a platform for pan-European business development, including the
distribution of local versions of our catalogs.
In December 1995, the Company acquired Systematika Ltd. , a leading
reseller of technical software in the United Kingdom and the publisher of the
popular System Science catalog. In June 1996, we acquired substantially all of
the assets of The Software Developer's Company, Inc. ("SDC") including The
Programmer's Supershop catalog, our largest domestic competitor. In August 1997,
we formed Programmer's Paradise, Canada Inc. located in Mississauga, Ontario, to
serve the growing developer market in Canada. In September 1997, the Company
acquired Logicsoft Holding BV the holding company for Logicsoft Europe BV,
located in Amsterdam, The Netherlands. Logicsoft is the largest software-only
corporate reseller of PC software in The Netherlands.
Our address is: 1157 Shrewsbury Avenue, Shrewsbury, New Jersey 07702,
Attention: Chief Executive Officer. Our telephone number is: (732) 389-8950.
RISK FACTORS
IN ADDITION TO THE OTHER INFORMATION CONTAINED IN THIS PROSPECTUS,
PROSPECTIVE INVESTORS SHOULD CAREFULLY CONSIDER THE FACTORS DISCUSSED BELOW IN
EVALUATING THE COMPANY AND ITS BUSINESS. THIS PROSPECTUS CONTAINS
FORWARD-LOOKING STATEMENTS WHICH INVOLVE RISKS AND UNCERTAINTIES. THE COMPANY'S
ACTUAL RESULTS COULD DIFFER MATERIALLY FROM THOSE ANTICIPATED IN THESE
FORWARD-LOOKING STATEMENTS AS A RESULT OF CERTAIN FACTORS, INCLUDING THOSE SET
FORTH IN THE FOLLOWING RISK FACTORS AND ELSEWHERE IN THIS PROSPECTUS. SEE
"INFORMATION CONCERNING FORWARD-LOOKING STATEMENTS."
COMPETITION
The direct marketing industry and the computer software distribution
business, in particular, are highly competitive. The Company competes with
consumer electronic and computer retail stores, including superstores, and other
direct marketers of software and computer related products. Certain software
vendors are selling their products directly through their own catalogs and over
the Internet. Certain competitors of the Company have financial, marketing and
other resources greater than those of the Company. There can be no assurance
that the Company can continue to compete effectively against existing
competitors or new competitors that may enter the market. In addition, price is
an important competitive factor in the personal computer software market and
there can be no assurance that the Company will not be subject to increased
price competition. An increase in the amount of competition faced by the Company
or its failure to compete effectively against its competitors could have a
material adverse effect on the Company's business, financial condition and
results of operations.
4
QUARTERLY FLUCTUATIONS AND SEASONALITY
The Company's sales and results of operations have fluctuated and are
expected to continue to fluctuate on a quarterly basis as a result of a number
of factors, including: the condition of the software industry in general; shifts
in demand for software products; industry shipments of new software products or
upgrades; the timing of new merchandise and catalog offerings; fluctuations in
response rates; fluctuations in postage, paper, shipping and printing costs and
in merchandise returns; adverse weather conditions that affect response,
distribution or shipping; shifts in the timing of holidays; and changes in the
Company's product offerings. The Company's operating expenditures are based on
sales forecasts. If revenues do not meet expectations in any given quarter,
operating results may be materially adversely effected.
The Company has traditionally experienced a decrease in domestic net sales
in its third quarter compared to other quarters. This traditional downturn in
domestic net sales is exacerbated by the decline of European commercial activity
in general and software sales in particular during the summer months.
FOREIGN OPERATIONS
In addition to its activities in the United States, 60% of the Company's
1997 sales were generated internationally. Foreign operations are subject to
general risks attendant to the conduct of business in each foreign country,
including economic uncertainties and each foreign government's regulations. In
addition, the Company's international business may be affected by changes in
demand or pricing resulting from fluctuations in currency exchange rates or
other factors.
PRIVACY CONCERNS WITH RESPECT TO LIST DEVELOPMENT AND MAINTENANCE
The Company mails catalogs and sends electronic messages to names in its
proprietary customer database and to potential customers whose names are
obtained from rented or exchanged mailing lists. There has been increasing
world-wide public concern regarding right to privacy issues involved with the
rental and use of customer mailing lists and other customer information. Any
domestic or foreign legislation enacted limiting or prohibiting these practices
could have a material adverse effect on the Company's business, financial
condition and results of operations.
MANAGEMENT INFORMATION SYSTEMS
The Company's success is dependent on the accuracy and proper utilization
of its management information systems, including its telephone system. The
Company's ability to manage its inventory and accounts receivable collections;
to purchase, sell and ship its products efficiently and on a timely basis; and
to maintain its operations is dependent upon the quality and effective
utilization of the information generated by its management information systems.
The Company recognizes the need to continually upgrade its management
information systems to most effectively manage its operations and customer data
base. In that regard, the Company anticipates that it will, from time to time,
require software and hardware upgrades for its present management information
systems.
INCREASES IN POSTAGE, SHIPPING AND PAPER COSTS
Increases in postal or shipping rates and paper costs could have a
significant impact on the cost of production and mailing of the Company's
catalogs and the shipment of customer orders. Postage prices and shipping rates
increase periodically, and the Company has no control over increases that may
occur in the future. The United States Postal Service has recently postal rates.
Paper prices historically have been cyclical and significant increases have been
experienced by the Company in the past. Significant increases in postal or
shipping rates and paper costs could have a material adverse effect on the
Company's business, financial condition and result of operations, particularly
to the extent the Company is unable to pass on such increases directly to its
customers or offset such increases by reducing
5
other costs. In addition, strikes or other service interruptions by the postal
service or third party couriers could adversely affect the Company's ability to
deliver products on a timely basis.
Additionally, the Company's operating results could be adversely affected
by a delay in the intro duction of a major new software product or upgrading of
more specialized products. Purchasers of software may delay the ordering of new
software applications in the period immediately preceding such introduction for
fear of technological obsolescence. The Company believes that software
publishers often delay the release of related software products so as to
coordinate with the release of these major new products or delay development of
new products until after the importance of these new products can be evaluated.
Delayed introductions of these new products could result in the delay or
reduction of sales because the unreleased product cannot be delivered and could
also adversely affect sales in that the Company, which often coordinates new
catalog drops and marketing initiatives with such introductions and product
upgrades, would be focusing catalog marketing on such unreleased products.
CHANGING METHODS OF SOFTWARE DISTRIBUTION
The software distribution industry is undergoing significant change and
consolidation. Software distributors are consolidating operations and acquiring
or merging with other distributors or retailers to achieve economies of scale
and increased efficiency. The current consolidation trend could cause the
industry to become even more competitive and make it more difficult for the
Company to maintain its operating margins. The manner in which software products
are distributed and sold is also changing, and new methods of distribution and
sale may emerge or expand. Software developers and publishers have sold, and may
intensify their efforts to sell, their products directly to end users. The
emergence of the Internet as a viable platform in which to conduct business
transactions has both lowered the barriers for competition and broadened
customers' access to products and information. This transition has heightened
the Company's awareness to maintain a competitive edge in this market. From time
to time certain developers and publishers have instituted programs for the
direct sale of large order quantities of software to certain major corporate
accounts. These types of programs may continue to be developed and used by
various developers and publishers. While Microsoft Corporation ("Microsoft") and
other vendors currently sell their products directly to end users, they have not
attempted to completely bypass the reseller channel. Future efforts by such
entities to bypass third-party sales channels could materially and adversely
affect the Company's operations.
In addition, certain major publishers, including Microsoft, have
implemented programs for the master copy distribution or site licensing of
software. These programs generally grant an organization the right to make a
number of copies of software for distribution within the organization provided
that the organization pays a fee to the developer for each copy made. Also,
resellers and publishers may attempt to increase the volume of software products
distributed electronically through down-loading to end users' microcomputers,
through CD-ROM unlocking technology, through CD-ROM-based subscription services
and through on-line shopping services. Any of these competitive programs, if
successful, could have a material adverse effect on the Company's operations and
financial condition.
DEPENDENCE UPON VENDORS
As is customary in the industry, the Company has no long-term supply
contracts with any of its suppliers. Substantially all the Company's contracts
with its vendors are terminable upon 30 days' notice or less. Termination or
interruption of the Company's relationships with its suppliers or modification
of the terms of or discontinuance of their agreements with the Company could
adversely affect the Company's operating results.
Certain of the products offered by the Company may be subject to
manufacturer allocations, which limit the number of units of manufacturers'
products available to resellers, including the Company. The Company's business
may be adversely affected if certain products become unavailable to the Company
or if the number of units allocated to the Company becomes limited, whether such
unavailability or limitation is due to the loss of authorized dealer status,
allocation limitations or other conditions. Many key vendors finance portions of
the cost of catalog
6
publication and distribution based upon the amount of coverage given in the
catalogs to their respective products. A reduction in or discontinuation of this
practice could have a material adverse effect on the Company.
RAPID CHANGES IN SOFTWARE PRODUCTS AND RISK OF INVENTORY OBSOLESCENCE
The software products industry is characterized by rapid technological
change and the frequent introduction of new products and product enhancements.
The Company's success depends in large part on its ability to identify and
obtain the right to market products that will meet the changing requirements of
the marketplace. The Company has sought to minimize its inventory exposure
through a variety of inventory control procedures and policies, including formal
and informal vendor price protection programs. In order to satisfy customer
demand and to obtain greater purchasing discounts, the Company expects to carry
increased inventory levels of certain products in the future. In addition, large
software firms continue to develop products that include the features of utility
and subroutine products published and/or sold by the Company in their software
languages, thus rendering certain of such products unnecessary. Additionally, if
the growth rate of the personal computer market were to decrease, with a
corresponding decrease in demand for computer software, the Company's operating
results could be adversely affected. There can be no assurance that the Company
will be able to identify and offer products necessary to remain competitive or
avoid losses related to obsolete inventory, or that unexpected new product
introductions will not have a material adverse effect on the demand for the
Company's inventory.
STOCK VOLATILITY
The technology sector of the United States stock markets has experienced
substantial volatility in recent periods. Numerous conditions which impact the
technology sector or the stock market in general or the Company in particular,
whether or not such events relate to or reflect upon the Company's operating
performance, could adversely affect the market price of the Company's Common
Stock. Furthermore, fluctuations in the Company's operating results,
announcements regarding litigation, the loss of a significant vendor, increased
competition, reduced vendor incentives and trade credit, higher postage and
operating expenses, and other developments, could have a significant impact on
the market price of the Company's Common Stock.
ACQUISITIONS STRATEGY
The Company plans to continue to pursue acquisitions of complementary
businesses. However, there can be no assurance that suitable acquisitions will
be available to the Company on acceptable terms, that financing for future
acquisitions will be available on acceptable terms, that future acquisitions
will be advantageous to the Company or that anticipated benefits of such
acquisitions will be realized. The pursuit, timing and integration of possible
future acquisitions may cause substantial fluctuations in operating results.
STATE SALES TAX COLLECTION
The Company presently collects state sales tax, or other similar tax, only
on sales of products to residents of the state of New Jersey. Various states
have tried to impose on direct marketers the burden of collecting state sales
taxes on the sale of products shipped to state residents. The United States
Supreme Court has affirmed its position that it is unlawful for a state to
impose state sales tax collection obligations on an out-of-state mail order
company whose only contacts with the state are the distribution of catalogs and
other advertising materials through the mail and subsequent delivery of
purchased goods by parcel post and interstate common carriers. However, it is
possible that legislation may be passed to overturn such decision or the Supreme
Court may change its position. Additionally, it is currently uncertain as to
whether electronic commerce, which will likely include the Company's Internet
sales activities, will be subject to state sales tax. The imposition of new
state sales tax collection obligations on the Company in states to which it
ships products would result in additional administrative expenses to the Company
and could result in price increases to the customer, which could adversely
affect the Company's business, financial condition and results of operations.
7
YEAR 2000 COMPLIANCE
The Company presently believes that with minor modifications to existing
operating systems, the Year 2000 Issue will not pose significant operational
problems for its computer systems. The Company expects the costs for these
modifications to be minimal.
The Company uses software and related technologies throughout its business
that will be affected by the Year 2000 problem common to most businesses
concerning the inability of information systems, primarily computer software
programs, to properly recognize and process date sensitive information as the
year 2000 approaches. The Company is evaluating its software operating systems
to improve its operations and achieve Year 2000 compliance. While the Company's
review and assessment of its internal systems is still in process, the Company
expects that any required modifications will not have a material effect on the
Company's operating results. However, in the event that the Company's key
vendors cannot provide the Company with software products that meet Year 2000
requirements on a timely basis, or if customers delay or forego software
purchases based upon Year 2000 related issues, the Company's operating results
could be materially adversely affected. In general as a reseller of software
products, the company only passes through to its customers the applicable
vendors' warranties. The Company's operating results could be materially
adversely affected, however, if it were held liable for the failure of software
products resold by the Company to be year 2000 compliant despite its disclaimer
of software product warranties.
USE OF PROCEEDS
The shares covered by this prospectus are being offered by certain selling
security holders and not by our company. Consequently, we will not receive any
proceeds from the sale of these shares. However, we may receive the proceeds
from the exercise of certain stock options as described below.
The shares that may be sold under this prospectus consist of shares that
the selling security holders may acquire in the future pursuant to certain stock
options that we have granted to them. In order for a selling security holder to
acquire any such shares, the selling security holder will be required to pay to
us the exercise price specified in the relevant option. We intend to use any
proceeds that we receive from the exercise of such options for working capital
and our general corporate purposes.
SELLING STOCKHOLDERS
The selling security holders identified in this prospectus may sell, from
time to time, up to 1,344,951 shares of our common stock. These shares may be
sold over an extended period of time.
The selling security holders that may sell shares pursuant to this
prospectus are the current and former officers, directors and employees of our
company that are identified on the table attached as Annex I hereto. The table
shows the number of shares that each selling security holder may sell pursuant
to this prospectus. If a selling security holder transfers any of the shares
shown in the table, the transferee will be considered a selling security holder
for purposes of this prospectus, provided that (1) the transfer was a private
placement and (2) the transferee is identified in a supplement to this
prospectus. The table does not list certain selling security holders who are
non-affiliates of the Company and who hold less than 1,000 of the shares
issuable under the plans to which this prospectus relates. These unnamed persons
may also use this prospectus to sell their shares.
8
PLAN OF DISTRIBUTION
The selling security holders may sell shares:
o through the Nasdaq National Market System, in the over-the-counter
market, in privately negotiated transactions or otherwise;
o directly to purchasers or through agents, brokers, dealers or
underwriters; and
o at market prices prevailing at the time of sale, at prices related to
such prevailing market prices, or at negotiated prices.
If a selling security holder sells shares through agents, brokers, dealers
or underwriters, such agents, brokers, dealers or underwriters may receive
compensation in the form of discounts, commissions or concessions. Such
compensation may be greater than customary compensation.
To the extent required, we will use our best efforts to file one or more
supplements to this prospectus to describe any material information with respect
to the plan of distribution not previously disclosed in this prospectus or any
material change to such information.
Sales of the Shares offered hereby may be made on NASDAQ/NMS or the
over-the-counter market or otherwise at prices and on terms then prevailing or
at prices related to the then current market price, or in negotiated
transactions.
LEGAL MATTERS
Certain legal matters relating to the shares of common stock that may be
offered pursuant to this prospectus will be passed upon for us by Golenbock,
Eiseman, Assor & Bell, 437 Madison Avenue, New York, New York 10022.
9
ANNEX I
Number of Shares Number of
of Common Stock Shares of Number of Shares of
Beneficially Common Common Stock Beneficially
Relationship with Owned Prior to Stock Owned After Completion of
Selling Stockholder the Company Offering(1) Offered(1) the Offering(2)
- ------------------- ----------------- -------------- ---------- -------------------------
Percentage
of Total
Shares
Number Outstanding
------ -----------
William H. Willett President, Chief 228,750 200,000 28,750 *
Executive Officer
and Director
Peter W. Lorenz Vice President - 321,594 50,000 271,594 5.3
European
Corporate
Reseller
Operations
John P. Broderick Chief Financial 101,500 68,500 33,000 *
Officer, Vice
President -
Finance and
Treasurer
Jeffrey Largiader Vice President - 91,050 42,300 48,750 1.0
Marketing
Kathleen Innacelli Vice President - 53,400 25,900 27,500 *
Advertising
F. Duffield Director 46,275 15,000 31,275 *
Meyercord
Edwin Morgens Director 164,921 15,000 149,921 3.0
Allan Weingarten Director 34,750 33,750 1,000 *
Roger Paradis Former President, 65,000 50,000 1,000 *
Chief Executive
Officer and
Director
Joseph V. Popolo Former Executive 116,350 30,100 86,250 1.7
Vice President
Thomas P. DeGarmo Former Vice 15,400 15,400 0 *
President
10
Number of Shares Number of
of Common Stock Shares of Number of Shares of
Beneficially Common Common Stock Beneficially
Relationship with Owned Prior to Stock Owned After Completion of
Selling Stockholder the Company Offering(1) Offered(1) the Offering(2)
- ------------------- ----------------- -------------- ---------- -------------------------
Percentage
of Total
Shares
Number Outstanding
------ -----------
Jane Altar Employee 4,000 1,750 2,250 *
Russell Betts Employee 1,500 1,500 0 *
Joan Carlson Employee 3,250 1,000 2,250 *
Mauro Ciacci Employee 3,250 2,000 1,250 *
William Cloherty Employee 1,500 1,500 0
John Funck Employee 3,000 1,750 1,250 *
Marcia Galvez Employee 2,000 2,000 0
Ronald Gutman Employee 7,500 7,500 0
Daniel Jamieson Employee 2,500 2,500 0
Nancy Cotter Employee 5,301 2,751 2,550 *
Thorston Kolbinger Employee 3,500 3,500 0
Steve McNamara Employee 5,000 5,000 0
David LeCat Employee 6,000 6,000 0
Vito Legrottaglie Employee 7,500 7,500 0
Peter Lindsey Managing 31,000 31,000 0
Director-
Systematika Ltd.
Colleen Minton Employee 2,500 2,500 0
Simon Ninjens Employee 5,000 5,000 0
Susan Orr Employee 3,500 3,500 0
Karen Ruane Employee 2,000 1,250 750 *
Jack Schwinn National Sales 20,640 11,000 9,640 *
Director
Peter Smith Employee 1,000 1,000 0
Allison Sorrento Employee 2,000 2,000 0
Douglas Stevens Employee 4,000 1,750 2,250 *
11
Number of Shares Number of
of Common Stock Shares of Number of Shares of
Beneficially Common Common Stock Beneficially
Relationship with Owned Prior to Stock Owned After Completion of
Selling Stockholder the Company Offering(1) Offered(1) the Offering(2)
- ------------------- ----------------- -------------- ---------- -------------------------
Percentage
of Total
Shares
Number Outstanding
------ -----------
Dagobert Von Employee 4,750 1,000 3,750 *
Schneyder
Edgar Von Schneyder Employee 1,000 1,000 0
Frans Van der Helm Vice President 20,000 20,000 0
and COO-Europe
Harry Van der Voort Employee 10,000 10,000 0
Ruud Van Noort Managing 30,000 30,000 0
Director-
Logicsoft B.V.
Lynda Wechkus Employee 1,500 1,500 0
- ----------
* Less than 1%.
(1) To the Company's knowledge, includes all shares of Common Stock
previously acquired by the Selling Stockholder under the Plans or
issuable to the Selling Stockholder upon exercise of outstanding
options granted under the Plans, including options which had not
vested as of, or would not vest within 60 days of, the date of this
Prospectus. Also includes shares that may be jointly owned with such
Selling Stockholders' spouse and other shares as to which the Selling
Stockholder disclaims beneficial ownership.
(2) Assumes that all options are exercised and all shares offered hereby
are sold, that no additional shares will be acquired and that no
shares other than those offered hereby will be sold.
12
======================================= =======================================
No dealer, salesman, or any other
person has been authorized to give any ------------
information or to make any
representation contained in this
Prospectus in connection with the PROGRAMMER'S
offering made hereby. You must not rely PARADISE, INC.
on any unauthorized information or
representations. This Prospectus is an
offer to sell or a solicitation of an
offer to buy only the shares offered
hereby, but only under circumstances 1,344,951 SHARES
and in jurisdictions where it is lawful OF
to do so. The information contained in COMMON STOCK
this Prospectus is current only as of
its date.
TABLE OF CONTENTS
------------
Page
PROSPECTUS
Where You Can Find More Information..3
Incorporation by Reference...........3 ------------
The Company..........................4
Risk Factors.........................4
Use of Proceeds......................8
Selling Stockholders.................8
Plan of Distribution.................9
Legal Matters........................9 February 12, 1999
Experts..............................9
======================================= =======================================
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Incorporated herein by reference and made a part of the Registration
Statement are the following documents filed by the Company with the Commission:
(1) the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997;
(2) the Company's Quarterly Report on Form 10-Q for the three months
ended March 31, 1998;
(3) the Company's Quarterly Report on Form 10-Q for the three and six
months ended June 30, 1998;
(4) the Company's Quarterly Report on Form 10-Q for the three and nine
months ended September 30, 1998;
(5) the Company's Notice of Annual Meeting of Stockholders and Proxy
Statement, dated April 30, 1998, for its Annual Meeting of Stockholders held on
June 16, 1998; and
(6) the description of the Common Stock, which is registered under
Section 12 of the Exchange Act, contained in the Company's Registration
Statement on Form 8-A dated July 18, 1995.
All documents subsequently filed by the Company 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 made
hereby will be deemed to be incorporated by reference into this Registration
Statement and to be a part hereof from the date of filing of such documents.
A copy of any and all of the information included in documents (but
not exhibits thereto except to the extent exhibits have been incorporated in
such documents) that have been incorporated by reference in this Registration
Statement but which are not delivered with this Prospectus will be provided by
the Company without charge to any person to whom this Prospectus is delivered,
upon the oral or written request of such person. Such requests should be
directed to Programmer's Paradise, Inc., 1157 Shrewsbury Avenue, Shrewsbury, New
Jersey 07702, Attention: Chief Executive Officer.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Delaware General Corporation Law, Section 102(b)(7), subject to
certain exceptions, enables a corporation in its original certificate of
incorporation or an amendment thereto validly approved by stockholders to
eliminate or limit personal liability of members of its Board of Directors for
violations of a director's fiduciary duty of care. However, the elimination or
limitation shall not apply where there has been a breach of the duty of loyalty,
failure to act in good faith, intentional misconduct or a knowing violation of a
law, the payment of a dividend or approval of a stock repurchase which is deemed
illegal or an improper personal benefit is obtained. Article Eleven of the
Company's Certificate of Incorporation includes the following language:
II-1
A Director of the Corporation shall not be personally liable to the Corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
Director, except for liability: (i) for any breach of the Director's duty of
loyalty to the Corporation or its stockholders; (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law; (iii) under Section 174 of the G.C.L.; or (iv) for any transaction from
which the Director derived an improper personal benefit. If the G.C.L. is
amended to authorize corporate action further eliminating or limiting the
personal liability of Directors, then the liability of a Director of the
Corporation shall be eliminated or limited to the fullest extent permitted by
the G.C.L., as so amended. The provisions of this ARTICLE VI are not intended
to, and shall not, limit, supersede or modify any other defense available to a
Director under applicable law. Any repeal or modification of this ARTICLE VI by
the stockholders of the Corporation shall not adversely affect any right or
protection of a Director of the Corporation existing immediately prior to the
time of such repeal or modification.
Delaware General Corporation Law, Section 145, permits a corporation
organized under Delaware law to indemnify directors and officers with respect to
any matter in which the director or officer acted in good faith and in a manner
he reasonably believed to be not opposed to the best interests of the Company,
and, with respect to any criminal action, had reasonable cause to believe his
conduct was lawful. Article Nine of the Company's Bylaws includes the following
language:
(a) As provided in the Restated Certificate of Incorporation of the
Corporation, to the fullest extent permitted by the Delaware Statute
as the same exists or may hereafter be amended, a director of this
Corporation shall not be liable to the Corporation or its stockholders
for breach of fiduciary duty as a director.
(b) Without limitation of any right conferred by paragraph (a) of this
Section 1, each person who was or is made a party or is threatened to
be made a party to or is otherwise involved in any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she is or was a director, officer or
employee of the Corporation or is or was serving at the request of the
Corporation as a director, officer or employee of another corporation
or of a partnership, joint venture, trust or other enterprise,
including service with respect to an employee benefit plan
(hereinafter an "indemnitee"), whether the basis of such proceeding is
alleged action in an official capacity while serving as a director,
officer or employee or in any other capacity while serving as a
director, officer or employee, shall be indemnified and held harmless
by the Corporation to the fullest extent authorized by the Delaware
Statute, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than
permitted prior thereto), against all expense, liability and loss
(including attorneys' fees, judgments, fines, excise taxes or amounts
paid in settlement) reasonably incurred or suffered by such indemnitee
in connection therewith and such indemnification shall continue as to
an indemnitee who has ceased to be a director, officer or employee and
shall inure to the benefit of the indemnitee's heirs, testators,
intestates, executors and administrators; provided, however, 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, and
with respect to a criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful; provided further, however,
that no indemnification shall be made in the case of an action, suit
or proceeding by or in the right of the Corporation in relation to
matters as to which it shall be adjudged in such action, suit or
proceeding that such director, officer, employee or agent is liable to
the Corporation, unless a court having jurisdiction shall determine
that, despite such adjudication, such person is fairly and reasonably
entitled to indemnification; provided further, however, that, except
as provided in Section 1(c) of this Article IX with respect to
proceedings to enforce rights to indemnification, the Corporation
shall indemnify any such
II-2
indemnitee in connection with a proceeding (or part thereof) initiated
by such indemnitee only if such proceeding (or part thereof) initiated
by such indemnitee was authorized by the Board of Directors of the
Corporation. The right to indemnification conferred in this Article IX
shall be a contract right and shall include the right to be paid by
the Corporation the expenses incurred in defending any such proceeding
in advance of its final disposition (hereinafter an "advancement of
expenses"); provided further, however, that, if the Delaware Statute
requires, an advancement of expenses incurred by an indemnitee in his
or her capacity as a director or officer (and not in any other
capacity in which service was or is rendered by such indemnitee,
including, without limitation, service to an employee benefit plan)
shall be made only upon delivery to the Corporation of an undertaking
(hereinafter an "undertaking") by or on behalf of such indemnitee, to
repay all amounts so advanced if it shall ultimately be determined by
final judicial decision from which there is no further right to appeal
(hereinafter a "final adjudication") that such indemnitee is not
entitled to be indemnified for such expenses under this Section or
otherwise.
(c) If a claim under Section (b) of this Article IX is not paid in
full by the Corporation with 60 days after a written claim has been
received by the Corporation, except in the case of a claim for an
advancement of expenses, in which case the applicable period shall be
20 days, the indemnitee may at any time thereafter bring suit against
the Corporation to recover the unpaid amount of the claim. If
successful in whole or in part in any such suit, or in a suit brought
by the Corporation to recover an advancement of expenses pursuant to
the terms of any undertaking, the indemnitee shall be entitled to be
paid also the expense of prosecuting or defending such suit. In any
suit brought by the indemnitee to enforce a right to indemnification
hereunder (but not in a suit brought by the indemnitee to enforce a
right to an advancement of expenses) it shall be a defense that the
indemnitee has not met the applicable standard of conduct set forth in
the Delaware Statute. In any suit by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the
Corporation shall be entitled to recover such expenses upon a final
adjudication that the indemnitee has not met the applicable standard
of conduct set forth in the Delaware Statute. Neither the failure of
the Corporation (including the Board, independent legal counsel, or
the stockholders) to have made a determination prior to the
commencement of such suit that indemnification of the indemnitee is
proper in the circumstances because the indemnitee has met the
applicable standard of conduct set forth in the Delaware Statute, nor
an actual determination by the Corporation (including the Board,
independent legal counsel, or the stockholders) that the indemnitee
has not met such applicable standard of conduct, shall create a
presumption that the indemnitee has not met the applicable standard of
conduct or, in the case of such a suit brought by the indemnitee, be a
defense to such suit. In any suit brought by the indemnitee to enforce
a right to indemnification or to an advancement of expenses hereunder,
or by the Corporation to recover an advancement of expenses pursuant
to the terms of an undertaking, the burden of proving that the
indemnitee is not entitled to be indemnified, or to such advancement
of expenses, under this Section or otherwise shall be on the
Corporation.
(d) The rights to indemnification and to the advancement of expenses
conferred in this Article IX shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, the
Restated Certificate of Incorporation of the Corporation, agreement,
vote of stockholders or disinterested directors or otherwise.
In furtherance of these provisions, the Company has entered into
indemnification agreements with its current officers and directors and maintains
standard forms of officers' and directors' liability insurance policies.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
The Company has relied upon Section 4(2) of the Securities Act and
Rule 701 promulgated thereunder with respect to restricted securities to be
reoffered or resold pursuant to this Registration Statement.
II-3
ITEM 8. EXHIBITS
4.1 1986 Stock Option Plan (incorporated by reference from the
registrant's Registration Statement on Form S-1 or
amendments thereto (File No. 33-92810)).
4.2 1995 Stock Plan, as amended (incorporated by reference from
Exhibit A to the registrant's Proxy Statement, dated April
30, 1998, for its 1998 Annual Meeting of Stockholders held
on June 16, 1998).
4.3 1995 Non-Employee Director Plan, as amended (incorporated by
reference from Exhibit B to the registrant's Proxy
Statement, dated April 30, 1998, for its 1998 Annual Meeting
of Stockholders held on June 16, 1998).
5 Opinion of Golenbock, Eiseman, Assor & Bell dated February
11, 1999.
23.1 Consent of Golenbock, Eiseman, Assor & Bell (included in
Exhibit 5).
23.2 Consent of Ernst & Young LLP.
24 Power of Attorney executed by the Officers and Directors who
signed this Registration Statement set forth on the
signature page hereto.
ITEM 9. UNDERTAKINGS
(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;
(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. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered
(if the total 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 a
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee' table in the effective 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)(1)(i) and (a)(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 by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
II-4
(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 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 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 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 or paid by a director, officer or controlling person of the registrant
in the successful defense of any anion, 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.
II-5
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 Shrewsbury and State of New Jersey on this 11th day
of February, 1999.
PROGRAMMER'S PARADISE, INC.
By: /s/ William H. Willett
-----------------------------------------
Name: William H. Willett
Title: President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby appoints each of William
H. Willett and John P. Broderick as his attorney-in-fact, with full power of
substitution, to execute in his name, individually and in each capacity stated
below, one or more amendments (including post-effective amendments) to this
Registration Statement as the attorney-in-fact acting on the premise shall from
time to time deem appropriate and to file any such amendment to this
Registration Statement with the Securities and Exchange Commission.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated:
/s/ William H. Willett
- -------------------------------- President, Chief February 11, 1999
William H. Willett Executive Officer
and Director (principal
executive officer)
/s/ John P. Broderick
- -------------------------------- Chief Financial Officer February 11, 1999
John P. Broderick (principal financial and
accounting officer)
/s/ Edwin H. Morgens
- -------------------------------- Director February 11, 1999
Edwin H. Morgens
/s/ Allan Weingarten
- -------------------------------- Director February 11, 1999
Allan Weingarten
/s/ Duffield Meyercord
- -------------------------------- Director February 11, 1999
F. Duffield Meyercord
II-6
EXHIBIT INDEX
Exhibit
4.1 1986 Stock Option Plan (incorporated by reference from the
registrant's Registration Statement on Form S-1 or amendments thereto
(File No. 33-92810).
4.2 1995 Stock Plan, as amended (incorporated by reference from Exhibit A
to the registrant's Proxy Statement, dated April 30, 1998, for its
1998 Annual Meeting of Stockholders held on June 16, 1998).
4.3 1995 Non-Employee Director Plan, as amended (incorporated by reference
from Exhibit B to the registrant's Proxy Statement, dated April 30,
1998, for its 1998 Annual Meeting of Stockholders held on June 16,
1998).
5 Opinion of Golenbock, Eiseman, Assor & Bell dated February 11, 1999.
23.1 Consent of Golenbock, Eiseman, Assor & Bell (included in Exhibit 5).
23.2 Consent of Ernst & Young LLP.
24 Power of Attorney executed by the Officers and Directors who signed
this Registration Statement set forth on the signature page hereto.