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Registration No. __________
As filed with the Securities and Exchange Commission on December 3, 1998
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
Registration Statement
Under
The Securities Act of 1933
SAXTON INCORPORATED
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(Exact name of registrant as specified in its charter)
Nevada 88-0223654
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(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
5440 West Sahara Avenue, Third Floor 89146
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(Address of Principal Executive Offices) (Zip Code)
Management Stock Option Incentive Plan
and
Non-Employee Director Stock Option Plan
---------------------------------------
(Full title of the plans)
James C. Saxton
5440 West Sahara Avenue, Third Floor, Las Vegas, Nevada 89146
(702) 221-1111
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(Name, address and telephone number of agent for service)
Copy to: Theodore H. Latty, Esq.
Hughes Hubbard & Reed LLP
350 South Grand Avenue
Los Angeles, CA 90071-3442
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed
Proposed maximum Amount of
Title of securities Amount to be maximum offering aggregate offering registration
to be registered registered(1) price per share price fee
- ------------------------- ----------------- -------------------- -------------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.001 per share 359,750 shares(2) $8.25(3) $2,967,938 $825
- ------------------------------------------------------------------------------------------------------
Common Stock, par value
$.001 per share 3,000 shares(4) $7.5625(5) $22,688(5) $6
- ------------------------------------------------------------------------------------------------------
Common Stock, par value
$.001 per share 140,250 shares(6) $6.8125(7) $955,453(7) $266
- ------------------------------------------------------------------------------------------------------
Common Stock, par value
$.001 per share 47,000 shares(8) $6.8125(7) $320,188(7) $ 89
- ------------------------------------------------------------------------------------------------------
Total Registration Fee
$1,186
(see footnotes on following page)
</TABLE>
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FOOTNOTES
(1) This Registration Statement also relates to such indeterminate number
of additional shares as may be issuable pursuant to stock splits, stock
dividends, or similar transactions.
(2) Represents the 359,750 shares of Registrant's Common Stock underlying
stock options issued under the Registrant's Management Stock Option
Incentive Plan at September 30, 1998.
(3) Represents the maximum exercise price of the outstanding stock options
described in note (2) above.
(4) Represents the 3,000 shares of Registrant's Common Stock underlying
stock options issued under the Registrant's Non-Employee Director
Option Plan.
(5) Represents the average exercise price of the outstanding stock options
described in note (4) above.
(6) Represents the 140,250 shares of Registrant's Common Stock underlying
additional stock options available for issuance under the Registrant's
Management Stock Option Incentive Plan at September 30, 1998.
(7) The proposed maximum offering price per share of Common Stock and the
proposed maximum aggregate offering price are calculated solely for the
purpose of determining the registration fee pursuant to Rule 457(h)
under the Securities Act of 1933. The registration fee is based on a
price of $6.8125 per share, which is the average of the high and low
prices of the Registrant's Common Stock as reported on the
Nasdaq/National Market on December 2, 1998.
(8) Represents the 47,000 shares of Registrant's Common Stock underlying
additional stock options available for issuance under the Registrant's
Non-Employee Director Option Plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by Saxton Incorporated (the
"Company") under the Securities Exchange Act of 1934 are incorporated herein by
reference:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1997;
(b) All reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since December 31, 1997; and
(c) The description of the Company's Common Stock contained in
the Company's registration statement therefor and subsequent amendments
thereof.
All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 after the date of
this Registration Statement and 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 in this Registration Statement and to be a part hereof
from the date of the filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Section 78.751 of the Nevada General Corporation Law (the "GCL")
and Article VIII of the Bylaws of the Company contain provisions for
indemnification of officers and directors of the Company. Section 78.751 of the
GCL also contains provisions permitting the indemnification of employees and
agents of the Company. The provisions of the Bylaws permit the Company to
indemnify officers and directors to the full extent permitted under law. Each
person will be indemnified in any proceeding if such person acted in good faith
and in a manner which such person reasonably believed to be in or not opposed to
the best interest of the Company. Indemnification would cover expenses including
attorneys' fees, judgments, fines and
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amounts paid in settlement. The Company has also entered into separate
indemnification agreements with certain of its officers and directors. These
indemnification agreements are separate and independent of the indemnification
rights under the Bylaws and are irrevocable.
The Company's Articles of Incorporation eliminate each director's
and officer's liability to the Company or its stockholders for damages for
breach of fiduciary duty except for (i) acts or omissions which involve
intentional misconduct, fraud, or a knowing violation of law or (ii) the payment
of dividends in violation of Section 78.300 of the GCL.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
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<CAPTION>
Number Description Method of Filing
- ------ ----------- ----------------
<S> <C> <C>
4.1 Articles of Incorporation of the Filed as Exhibit 3.1 to the Company's
Company Registration Statement on Form S-1,
No. 333-23927, which became effective
on June 24, 1997
(the "Form S-1")
4.2 Bylaws of the Company, as amended Filed as Exhibit 3.3 to the Form S-1.
4.3 Saxton Incorporated Management Stock Filed as Exhibit 10.2 to the Form S-1.
Option Incentive Plan
4.4 Saxton Incorporated Non-Employee Filed as Exhibit 10.3 to the Form S-1.
Director Stock Option Plan
5.1 Opinion of Hughes Hubbard & Reed LLP Filed herewith
23.1 Consent of KPMG Peat Marwick LLP Filed herewith
23.2 Consent of Hughes Hubbard & Reed LLP Included in Exhibit 5.1
24.1 Powers of Attorney Filed herewith
</TABLE>
Item 9. Undertakings
(a) The Company hereby undertakes:
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(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 of 1933;
(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, represents 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 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 Company
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
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(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 Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company'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) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing provisions,
or otherwise, the Company has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other
than the payment by the Company of expenses incurred or paid by a
director, officer or controlling person of the Company in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer or
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controlling person in connection with the securities being registered,
the Company will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
THE REGISTRANT. 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 Las Vegas, State of Nevada, on this
2nd day of December, 1998.
SAXTON INCORPORATED
By: /s/ James C. Saxton
---------------------------------------------
Name: James C. Saxton
Title: President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on this 2nd day of December, 1998.
<TABLE>
<CAPTION>
Signature Capacity
- -------- ---------
<S> <C>
/s/ James C. Saxton President, Chief Executive Officer and
--------------------------- Chairman of the Board of Directors
James C. Saxton (Principal Executive Officer)
/s/ Kirk Scherer Chief Financial Officer (Principal
--------------------------- Financial and Accounting Officer)
Kirk Scherer
/s/ Timothy J. Adams
--------------------------- Director
Timothy J. Adams
/s/ Marc Hechter
- --------------------------- Director
Marc Hechter
/s/ Michele Saxton-Pori
- --------------------------- Director
Michele Saxton-Pori
/s/ Douglas W. Hensley
--------------------------- Director
Douglas W. Hensley
</TABLE>
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<TABLE>
<CAPTION>
Signature Capacity
- -------- ---------
<S> <C>
/s/ Paul Eisenberg
--------------------------- Director
Paul Eisenberg
/s/ Bernard J. Mikell, Jr.
--------------------------- Director
Bernard J. Mikell, Jr.
/s/ Robert L. Seale
--------------------------- Director
Robert L. Seale
</TABLE>
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
Number Description Method of Filing
- ----- ----------- ----------------
<S> <C> <C>
4.1 Articles of Incorporation of the Filed as Exhibit 3.1 to the Company's
Company Registration Statement on Form S-1,
No. 333-23927, which became effective
on June 24, 1997 (the "Form S-1")
4.2 Bylaws of the Company, as amended Filed as Exhibit 3.3 to the Form S-1.
4.3 Saxton Incorporated Management Stock Filed as Exhibit 10.2 to the Form S-1.
Option Incentive Plan
4.4 Saxton Incorporated Non-Employee Filed as Exhibit 10.3 to the Form S-1.
Director Stock Option Plan
5.1 Opinion of Hughes Hubbard & Reed LLP Filed herewith
23.1 Consent of KPMG Peat Marwick LLP Filed herewith
23.2 Consent of Hughes Hubbard & Reed LLP Included in Exhibit 5.1
24.1 Powers of Attorney Filed herewith
</TABLE>
<PAGE> 1
EXHIBIT 5.1
[HUGHES HUBBARD & REED LLP LETTERHEAD]
December 2, 1998
Saxton Incorporated
5440 West Sahara Avenue, Third Floor
Las Vegas, Nevada 89146
Re: Registration Statement on Form S-8
Gentlemen:
We have represented Saxton Incorporated, a Nevada corporation (the
"Company"), as special securities counsel in connection with the registration
under the Securities Act of 1933, as amended (the "Securities Act"), of an
aggregate of 550,000 shares of the Company's common stock, $.001 par value (the
"Shares"), issuable upon exercise of the stock options granted under the Saxton
Incorporated Management Stock Option Incentive Plan and the Saxton Incorporated
Non-Employee Director Stock Option Plan (collectively, the "Plans"). The Shares
are being registered by the Company on a Registration Statement on Form S-8 to
be filed with the Securities and Exchange Commission (the "Commission") on or
about December 3, 1998 (the "Registration Statement").
As such special securities counsel, and for the purpose of rendering
this opinion, we have reviewed such corporate records and other documents as we
have deemed necessary and appropriate to render the opinion contained herein. In
addition, we have consulted with officers and other representatives of the
Company and have obtained such representations with respect to such matters of
fact as we have deemed necessary or advisable; however, we have not necessarily
independently verified the content of factual statements made to us in
connection therewith or the veracity of such representations. We have assumed
without independent verification or investigation (i) the genuineness of all
signatures, (ii) the authenticity of all documents submitted to us as originals
and (iii) the conformity to authentic original documents of all documents
submitted to us as certified, conformed or photostatic copies.
On the basis of the foregoing, such examinations of law and such other
information as we have deemed relevant under the circumstances, we are of the
opinion as of the date hereof that the Shares, when issued and sold pursuant to
the Plans, will be validly issued, fully paid and nonassessable shares of common
stock of the Company.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement relating to the Shares. In giving this consent, we do not
admit that we are in the category of persons whose consent is required under
Section 7 of the Securities Act or the rules or regulations of the Commission
promulgated thereunder.
Very truly yours,
HUGHES HUBBARD & REED LLP
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement of Saxton Incorporated on Form S-8 of our report dated
March 24, 1998, included in the Annual Report on Form 10-K of Saxton
Incorporated for the year ended December 31, 1997, and to all references to our
Firm included in this Registration Statement and the related Prospectus.
KPMG Peat Marwick LLP
Las Vegas, Nevada
December 1, 1998
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EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each of the undersigned
does hereby constitute and appoint each of James C. Saxton and Douglas W.
Hensley, with full power of substitution, his or her true and lawful attorney to
execute in his or her name in any and all capacities any Registration Statement
on Form S-8 to be filed with the Securities and Exchange Commission under the
Securities Act of 1933 relating to the Saxton Incorporated Management Stock
Option Incentive Plan and the Saxton Incorporated Non-Employee Director Stock
Option Plan (collectively, the "Plans"), including without limitation additional
Registration Statements on Form S-8 relating to the Plans, and any and all
amendments (including post-effective amendments) to any such Registration
Statement, and to file the same, with all exhibits thereto and any other
documents in connection therewith, with the Securities and Exchange Commission.
Each such attorney and his substitutes shall have and may exercise all powers to
act hereunder. Each of the undersigned does hereby ratify and confirm all that
said attorney and agent shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, each of the undersigned has signed his/her
name hereto as of this 2nd day of December, 1998.
<TABLE>
<S> <C>
/s/ James C. Saxton /s/ Douglas W. Hensley
- ------------------------------- --------------------------
James C. Saxton Douglas W. Hensley
/s/ Timothy J. Adams /s/ Michele Saxton-Pori
- ------------------------------- --------------------------
Timothy J. Adams Michele Saxton-Pori
/s/ Marc Hechter /s/ Paul Eisenberg
- ------------------------------- --------------------------
Marc Hechter Paul Eisenberg
/s/ Bernard J. Mikell, Jr. /s/ Robert L. Seale
- ------------------------------- --------------------------
Bernard J. Mikell, Jr. Robert L. Seale
/s/ Kirk Scherer
- -------------------------------
Kirk Scherer
</TABLE>
