As filed with the Securities and Exchange Commission on May 24, 2001
Registration No. 333-__________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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.)
2300 Windy Ridge Parkway, Suite 100 North
Atlanta, Georgia 30339-8426
(Address of principal executive offices, including zip code)
The Profit Recovery Group International, Inc. Stock Incentive Plan
(Full title of the plan)
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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) 779-3051 Atlanta, Georgia 30309-3450
(Telephone number, including area code, of (404) 873-8688
agent for service)
CALCULATION OF REGISTRATION FEE
========================== ================ ======================= ======================= =====================
Proposed Maximum Proposed Maximum
Title of Securities to Amount to be Offering Price Per Aggregate Offering Amount of
be Registered Registered Share (1) Price (1) Registration Fee (1)
-------------------------- ---------------- ----------------------- ----------------------- ---------------------
Common Stock, no par
value per share 4,125,000 $6.985 $28,813,125.00 $7,203.28
========================== ================ ======================= ======================= =====================
(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 May 21, 2001 as quoted
on The Nasdaq Stock Market.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by The Profit Recovery Group International,
Inc. ("PRG" or the "Registrant") with the Securities and Exchange Commission
(the "Commission") hereby are incorporated herein by reference as of their
respective dates:
o PRG's Annual Report on Form 10-K for the year ended December 31, 2000;
o PRG's Quarterly Report on Form 10-Q for the quarter ended March 31,
2001; and
o The description of PRG's common stock as contained in PRG's
Registration Statement on Form 8-A (Registration No. 0-28000) as
declared effective by the Commission on March 26, 1996, as amended by
the Registration Statement on Form 8-A/A filed on August 9, 2000.
In addition, all reports and documents subsequently filed by PRG pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934,
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, and beneficially owns approximately 1.21
million shares of PRG common stock. As of May 22, 2001, attorneys with Arnall
Golden Gregory LLP beneficially own an aggregate of approximately 1.3 million
shares of PRG's common stock.
Item 6. Indemnification of Directors and Officers
Article 8 of PRG's articles of incorporation and Article 7 of PRG's bylaws
set forth the extent to which PRG's directors and officers may be indemnified
against liabilities they may incur while serving in such capacities. Such
indemnification will be provided to the fullest extent allowed by the Georgia
Business Corporation Code, as amended from time to time. Under these
indemnification provisions, PRG is required to indemnify any of its directors
and officers against any reasonable expenses (including attorneys' fees)
incurred by such party in the defense of any action, suit or proceeding, whether
civil, criminal, administrative or investigative, to which such person was made
a party, or in defense to any claim, issue or matter therein, by reason of the
fact that such person is or was a director or officer of PRG or who, while a
director or officer of PRG, is or was serving at PRG's request as a director,
officer, partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise to
the extent that such director or officer has been successful, on the merits or
otherwise, in such defense. PRG also is required to indemnify any of its
directors or officers against any liability incurred in connection with any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
name of PRG, in which event, additional determinations must be made before
indemnification is provided) by reason of the fact that he or she is or was a
director or officer of PRG who, while a director or officer of PRG, is or was
serving at PRG's request as a director, officer, partner, trustee, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, if such director or officer acted in a manner
he or she believed in good faith to be in, or not opposed to, the best interests
of PRG, and with respect to any criminal proceeding, had no reasonable cause to
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believe his or her conduct was unlawful. PRG may also provide advances of
expenses incurred by a director or officer in defending such action, suit or
proceeding upon receipt of a written affirmation of such officer or director
that he or she has met certain standards of conduct and an undertaking by or on
behalf of such officer or director to repay such advances unless it is
ultimately determined that he or she is entitled to indemnification by PRG.
PRG's articles of incorporation contain a provision which eliminates, to
the fullest extent permitted by law, director liability for monetary damages for
breaches of the fiduciary duty of care or any other duty as a director.
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
PRG may, and in some cases must, be indemnified by PRG 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 PRG (including actions, suits or proceedings
brought against them for violations of the federal securities laws).
PRG has entered into indemnification agreements with each of its directors
and certain executive officers ("Indemnitees"). Pursuant to such agreements, PRG
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 PRG, because he or she is or
was a director or officer of PRG or is or was serving at the request of PRG 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 PRG, 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 PRG, 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 PRG 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 PRG to the Indemnitee within
thirty (30) days after PRG'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 (the "1933 Act"), may be permitted to directors, officers or persons
controlling PRG pursuant to the foregoing provisions of the Georgia Business
Corporation Code and PRG's articles of incorporation and bylaws, PRG has been
informed that indemnification is considered by the Commission to be against
public policy and therefore unenforceable.
PRG currently maintains an insurance policy which insures the directors and
officers of PRG against certain liabilities, including certain liabilities under
the 1933 Act.
Pursuant to the Underwriting Agreement entered into by PRG in connection
with its initial public offering of common stock and the Underwriting Agreement
entered into in connection with its secondary public offering of common stock in
March 1998 and January 1999, the Underwriters thereunder have agreed to
indemnify the directors and officers of PRG and certain other persons against
certain civil liabilities.
Pursuant to the Stock Incentive Plan (the "Plan"), in addition to such
other rights of indemnification that they may have as directors of PRG or as
members of the Compensation Committee of the Board of Directors of PRG (the
"Committee"), the members of the Committee shall be indemnified by PRG against
the reasonable expenses, including attorneys' fees actually and necessarily
incurred in connection with the defense of any action, suit or proceeding, or in
connection with any appeal therein, to which they or any of them may be a party
by reason of any action taken or failure to act under or in connection with the
Plan or any option granted thereunder, and against all amounts paid by them in
settlement thereof (provided such settlement is approved by independent legal
counsel selected by PRG) or paid by them in satisfaction of a judgment in any
such action, suit or proceeding, except in relation to matters as to which it
shall be adjudged in such action, suit or proceeding that such Committee member
is liable for negligence or misconduct in the performance of his or her duties.
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Item 8. Exhibits
Exhibit
Number Description
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4.1 Specimen Stock Certificate (Incorporated by reference to Exhibit 4.1
of the Registrant's Registration Statement on Form S-1 (Registration
No. 333-1086)
4.2 Applicable provisions of the Articles of Incorporation and Bylaws of
the Registrant (Incorporated by reference to Exhibits 4.2 and 4.3 of
the Registrant's Registration Statement on Form 8-A/A filed August 9,
2000)
5* Opinion of Arnall Golden Gregory LLP
23.1* Consent of KPMG LLP
23.2* Consent of Arnall Golden Gregory LLP (included in Exhibit 5)
23.3* Consent of ERNST & YOUNG Audit
24.1* Power of Attorney (included as part of the signature page hereto)
99.1 The Profit Recovery Group International, Inc. Stock Incentive Plan
(Incorporated by referenced to Exhibit 10.5 to the Registrant's Form
10-Q for the quarterly period ended September 30, 1998)
---------------------------
* Filed herewith.
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 1934 Act 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.
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(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 Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 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 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 March 26, 2001.
THE PROFIT RECOVERY GROUP INTERNATIONAL, INC.
By: /s/ John M. Cook
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John M. Cook
Chairman of the Board and
Chief Executive Officer
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.
Name Title Date
/s/ John M. Cook Chairman of the Board, Chief March 26, 2001
------------------------------------ Executive Officer and Director
John M. Cook (Principal Executive Officer)
/s/ Donald E. Ellis, Jr. Executive Vice President - Finance, March 26, 2001
------------------------------------ Chief Financial Officer and Treasurer
Donald E. Ellis, Jr. (Principal Financial Officer)
/s/ Allison Aden Vice President - Finance March 26, 2001
------------------------------------ (Principal Accounting Officer)
Allison Aden
/s/ John M. Toma Vice Chairman and Director March 26, 2001
------------------------------------
John M. Toma
/s/ Stanley B. Cohen Director March 26, 2001
------------------------------------
Stanley B. Cohen
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/s/ Marc S. Eisenberg Director March 26, 2001
------------------------------------
Marc S. Eisenberg
/s/ Jonathan Golden Director March 26, 2001
------------------------------------
Jonathan Golden
/s/ Garth H. Greimann Director March 26, 2001
------------------------------------
Garth H. Greimann
/s/ Fred W. I. Lachotzki Director March 26, 2001
------------------------------------
Fred W. I. Lachotzki
/s/ E. James Lowrey Director March 26, 2001
------------------------------------
E. James Lowrey
/s/ Thomas S. Robertson Director March 26, 2001
------------------------------------
Thomas S. Robertson
/s/ Jackie M. Ward Director March 26, 2001
------------------------------------
Jackie M. Ward
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EXHIBIT INDEX
Exhibit
Number Description
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4.1 Specimen Stock Certificate (Incorporated by reference to Exhibit 4.1
of the Registrant's Registration Statement on Form S-1 (Registration
No. 333-1086)
4.2 Applicable provisions of the Articles of Incorporation and Bylaws of
the Registrant (Incorporated by reference to Exhibits 4.2 and 4.3 of
the Registrant's Registration Statement on Form 8-A/A filed August 9,
2000)
5* Opinion of Arnall Golden Gregory LLP
23.1* Consent of KPMG LLP
23.2* Consent of Arnall Golden Gregory LLP (included in Exhibit 5)
23.3* Consent of ERNST & YOUNG Audit
24.1* Power of Attorney (included as part of the signature page hereto)
99.1 The Profit Recovery Group International, Inc. Stock Incentive Plan
(Incorporated by referenced to Exhibit 10.5 to the Registrant's Form
10-Q for the quarterly period ended September 30, 1998)
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* Filed herewith.
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