As filed with the Securities and Exchange Commission on July 8, 1997
Registration No. 333-
The Profit Recovery Group International, Inc.
(Exact name of registrant as specified in its charter)
Georgia 58-2213805
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
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2300 Windy Ridge Parkway, Suite 100 North, Atlanta,Georgia 30339-8426
(Address of principal executive
offices, including zip code)
Clinton McKellar, Jr., Esq. Copy to:
The Profit Recovery Group International, Inc.
2300 Windy Ridge Parkway B. Joseph Alley, Jr., Esq.
Suite 100 North Arnall Golden & Gregory, LLP
Atlanta, Georgia 30339-8426 2800 One Atlantic Center
(Name and address of agent for service) 1201 West Peachtree Street
(770) 955-3815 Atlanta, Georgia 30309-3450
(Telephone number, including area code, of (404) 873-8688
agent for service)
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(1) The offering price for such shares is estimated pursuant to Rule 457(c) and (h) under the Securities Act of 1933, as amended, solely for the purpose of calculating the registration fee and is based upon the average of the high and low prices of the Registrant's Common Stock on June 30, 1997 as quoted on The Nasdaq Stock Market.
443029.2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents heretofore filed by The Profit Recovery Group International, Inc. (the "Company" or the "Registrant") with the Securities and Exchange Commission (the "Commission") hereby are incorporated herein by reference as of their respective dates:
(1) The Company's Annual Report on Form 10-K for the year ended December 31, 1996;
(2) The Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1997; and
(3) The description of the Company's Common Stock as contained in the Company's Registration Statement on Form 8-A (Registration No. 0-28000) as declared effective by the Commission on March 26, 1996.
In addition, all reports and documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the "1934 Act"), prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and made a part hereof from the date of the filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this 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 supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
Item 5. Interest of Named Experts and Counsel
Certain legal matters in connection with the Common Stock covered by this Prospectus are being passed upon by Arnall Golden & Gregory, LLP. Jonathan Golden, the sole stockholder of Jonathan Golden P.C. (a partner of Arnall Golden & Gregory, LLP), is a director of the registrant. As of the date hereof, attorneys with Arnall Golden & Gregory,LLP beneficially own an aggregate of approximately 1,100,000 shares of the registrant's Common Stock.
Item 6. Indemnification of Directors and Officers
Article 8 of the Company's Articles of Incorporation eliminates,
subject to certain exceptions, the personal liability of directors to the
Company or its shareholders for monetary damages for breaches of such directors'
duty of care or other duties as a director. The Articles do not provide for the
elimination of or any limitation on the personal liability of a director for (i)
any appropriation, in violation of the director's duties, of any business
opportunity of the Company, (ii) acts or omissions that involve intentional
misconduct or a knowing violation of law, (iii) unlawful corporate
distributions; or (iv) any transaction from which the director received an
improper benefit. In addition, Article VII of the Company's Bylaws provides
broad indemnification rights to directors and officers so long as the director
or officer acted in a manner believed in good faith to be in or not opposed to
the best interests of the Company, and with respect to criminal proceedings, if
the director had no reasonable cause to believe his or her conduct was unlawful.
The personal liability of directors for monetary damages for violations of
federal securities laws is not affected by these provisions. The Registrant may
also provide advances of expenses incurred by a director or officer in defending
any such action, suit or proceeding upon receipt of (i) a written affirmation of
such officer or director that he or she has met certain standards of conduct and
that his or her conduct does not constitute certain identified behavior, and
(ii) a written undertaking by or on behalf of such officer or director to repay
such advances if it is ultimately determined that he or she is not entitled to
indemnification by the Registrant. These provisions of the Articles and Bylaws
will limit the remedies available to a shareholder who is dissatisfied with a
Board decision protected by these provisions, and such shareholder's only remedy
in that circumstance may be to bring a suit to prevent the Board's action. In
many situations, this remedy may not be
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effective, as, for example, when shareholders have no prior awareness of the Board's consideration of the particular transaction or event.
Pursuant to Sections 14-2-851 through 14-2-857 of the Georgia Business Corporation Code, as amended, the directors, officers, employees and agents of the Company may, and in some cases must, be indemnified by the Company under certain circumstances against expenses and liabilities incurred by or imposed upon them as a result of actions, suits or proceedings brought against them as directors, officers, employees and agents of the Company (including actions, suits or proceedings brought against them for violations of the federal securities laws).
The Company has entered into Indemnification Agreements with certain of its directors and executive officers ("Indemnitees"). Pursuant to such agreements, the Company shall indemnify each Indemnitee whenever he or she is or was a party or is threatened to be made a party to any proceeding, including without limitation any such proceeding brought by or in the right of the Company, because he or she is or was a director or officer of the Company or is or was serving at the request of the Company as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, or because of anything done or not done by the Indemnitee in such capacity, against expenses and liabilities (including the costs of any investigation, defense, settlement or appeal) actually and reasonably incurred by the Indemnitee or on his or her behalf in connection with such proceeding, if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that an Indemnitee did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his or her conduct was unlawful. If in the judgment of the Board of Directors of the Company an Indemnitee is reasonably likely to be entitled to indemnification pursuant to the Agreement, all reasonable expenses incurred by or on behalf of such Indemnitee shall be advanced from time to time by the Company to the Indemnitee within thirty (30) days after the Company's receipt of a written request for an advance of expenses by such Indemnitee, whether prior to or after final disposition of a proceeding.
Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended (the "1933 Act"), may be permitted to directors, officers or persons controlling the Company pursuant to the foregoing provisions of the Georgia Business Corporation Code and the Company's Articles and Bylaws, the Company has been informed that indemnification is considered by the Securities and Exchange Commission to be against public policy and therefore unenforceable.
The Registrant currently maintains an insurance policy which insures the directors and officers of the Registrant against certain liabilities, including certain liabilities under the 1933 Act.
Item 8. Exhibits
Exhibit Number Description ------- ----------- *4.1 Specimen Stock Certificate 5 Opinion of Arnall Golden & Gregory, LLP 23.1 Consent of KPMG Peat Marwick LLP 23.2 Consent of Arnall Golden & Gregory, LLP (included in Exhibit 5) --------------------------- |
* Incorporated by reference to Exhibit of same number of the Registrant's Registration Statement on Form S-1 (Registration No. 333-1086).
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Item 9. Undertakings
A. Rule 415 Offering.
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 1933 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;
(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 paragraph (a)(1)(i) and (a)(1)(ii) shall not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the 1933 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. Subsequent Documents Incorporated by Reference.
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the 1933 Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the 1934 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. Indemnification of Officers, Directors and Controlling Persons.
Insofar as indemnification for liabilities arising under the 1933 Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions described under Item 6 above, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the 1933 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 1933 Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Atlanta, State of Georgia, on June 30, 1997.
THE PROFIT RECOVERY GROUP
INTERNATIONAL, INC.
By: /s/ John M. Cook
------------------------------
John M. Cook
Chairman of the Board, Chief
Executive Officer and President
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KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints John M. Cook, Clinton McKellar, Jr. and Donald E. Ellis, Jr. and each of them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his or her name, place, and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as he or she might or could do in person, hereby ratifying and confirming all that said attorneys in fact and agents, or any of them, or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
PRINCIPAL EXECUTIVE, FINANCIAL & ACCOUNTING OFFICERS AND DIRECTORS:
Name Title Date
---- -------------------------------------- -----
/s/ John M. Cook Director, Chairman of the Board, Chief June 30, 1997
---------------------------- Executive Officer and President
John M. Cook (Principal Executive Officer)
/s/ Donald E. Ellis, Jr. Senior Vice President, Chief Financial June 30, 1997
---------------------------- Officer and Treasurer
Donald E. Ellis, Jr. (Principal Financial Officer)
/s/ Michael Melton Vice President-Finance June 30, 1997
---------------------------- (Principal Accounting Officer)
Michael Melton
/s/ John M. Toma Executive Vice President - June 30, 1997
---------------------------- Administration and Director
John M. Toma
/s/ Stanley B. Cohen Director June 30, 1997
----------------------------
Stanley B. Cohen
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/s/ Jonathan Golden Director July 1, 1997
----------------------------
Jonathan Golden
Director July __, 1997
----------------------------
Garth H. Greimann
Director July __, 1997
----------------------------
Fred W. I. Lachotzki
Director July __, 1997
----------------------------
E. James Lowrey
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EXHIBIT INDEX
Exhibit
*4.1 Specimen Stock Certificate 5 Opinion of Arnall Golden & Gregory, LLP 23.1 Consent of KPMG Peat Marwick LLP 23.2 Consent of Arnall Golden & Gregory, LLP (included in Exhibit 5) --------------------------- |
* Incorporated by reference to Exhibit of same number of the Registrant's Registration Statement on Form S-1 (Registration No. 333-1086).
Arnall Golden & Gregory, LLP 2800 One Atlantic Center 1201 West Peachtree Street Atlanta, Georgia 30309-3450
(404) 873-8500
(404) 873-8501
July 8, 1997
The Profit Recovery Group International, Inc.
2300 Windy Ridge Parkway
Suite 100 North
Atlanta, Georgia 30339-8426
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
This opinion is rendered in connection with the proposed issue and sale by The Profit Recovery Group International, Inc., a Georgia corporation (the "Company"), of up to 750,000 shares of the Company's Common Stock, no par value (the "Shares"), upon the terms and conditions set forth in the Registration Statement on Form S-8 (the "Registration Statement") filed by the Company with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Act"). We have acted as counsel for the Company in connection with the issuance and sale of the Shares by the Company.
In rendering the opinion contained herein, we have relied in part upon examination of the Company's corporate records, documents, certificates and other instruments and the examination of such questions of law as we have considered necessary or appropriate for the purpose of this opinion. Based upon the foregoing, we are of the opinion that the Shares have been duly and validly authorized and when sold in the manner contemplated by the Employee Stock Purchase Plan of the Company, and upon receipt by the Company of payment in full therefor as provided therein, and upon issuance pursuant to a current prospectus in conformity with the Act, they will be legally issued, fully paid and non-assessable.
We consent to the filing of this opinion as an exhibit to the Registration Statement. This consent is not to be construed as an admission that we are a party whose consent is required to be filed with the Registration Statement under the provisions of the Act.
Sincerely,
ARNALL GOLDEN & GREGORY, LLP
ARNALL GOLDEN & GREGORY, LLP
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Independent Auditor's Consent
The Board of Directors
The Profit Recovery Group International, Inc.:
We consent to incorporation by reference in the registration statement (No. 333-________) on Form S-8 of The Profit Recovery Group International, Inc. of our report dated January 24, 1997, except for the final paragraph of Note 8, as to which the date is February 11, 1997, relating to the consolidated balance sheets of The Profit Recovery Group International, Inc. and subsidiaries as of December 31, 1996 and 1995, and the related consolidated statements of earnings, shareholders' equity (deficit), and cash flows for each of the years in the three-year period ended December 31, 1996, which report appears in the December 31, 1996 annual report on Form 10-K of The Profit Recovery Group International, Inc.
KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Atlanta Georgia
July 1, 1997
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