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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 5, 1996
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------
PRIME SERVICE, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 16225 PARK TEN PLACE, SUITE 200 76-0452435
(State or Other HOUSTON, TEXAS 77084 (I.R.S. Employer
Jurisdiction of Identification No.)
Incorporation or
Organization)
(Address of Principal Executive Offices Including Zip Code)
------------------------------
PRIME HOLDING, INC.
MANAGEMENT STOCK INCENTIVE PLAN
PRIME SERVICE, INC.
1996 MANAGEMENT STOCK INCENTIVE PLAN
(Full Title of the Plan)
------------------------------
BRIAN FONTANA
CHIEF FINANCIAL OFFICER
PRIME SERVICE, INC.
16225 PARK TEN PLACE, SUITE 200
HOUSTON, TEXAS 77084
(Name and Address of Agent For Service)
------------------------------
(214) 578-5600
(Telephone Number, Including Area Code, of Agent For Service)
------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE AGGREGATE REGISTRATION FEE
OFFERING PRICE
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
COMMON STOCK, PAR 1,759,727(1) $21.12(2) $37,336,682 $11,315
VALUE $.01 PER SHARE
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) This Registration Statement registers the issuance or transfer of: (i)
1,759,727 shares of common stock, par value $.01 per share (the "Common
Stock"), of Prime Service, Inc., a Delaware corporation (the "Company"),
presently reserved for issuance under the Prime Holding, Inc. Management
Stock Incentive Plan (the "1994 Plan") and the Prime Service, Inc. 1996
Management Stock Incentive Plan (the "1996 Plan," together with the 1994
Plan, the "Plans"), (ii) additional shares of Common Stock that become
available under the Plans in connection with certain changes in the number
of outstanding shares of Common Stock because of such things as
recapitalizations, stock dividends, and stock splits, and (iii) any other
securities with respect to which the outstanding shares of Common Stock
are converted or exchanged.
(2) Pursuant to Paragraphs (c) and (h) of Rule 457 under the Securities Act,
the Company has determined the proposed maximum offering price per share
to be $21.12. This price is the weighted average of (i) $24.44, the
average of the high and low prices for the 1,153,335 shares of Common
Stock as yet unissued under the 1996 Plan, on November 1, 1996, a date
within five business days before the filing of this Registration
Statement. (ii) $3.86, the exercise price for issued and outstanding
options for 259,727 shares of Common Stock under the 1994 Plan, and (iii)
$23.50, the exercise price for issued and outstanding options for 346,665
shares of Common Stock under the 1996 Plan.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The information requested in Part I of this Registration
Statement is included in the prospectus for the Plan, which the Company has
excluded from this Registration Statement in accordance with the instructions
to Form S- 8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents that the Company has previously filed
with the Commission are hereby incorporated by reference into this Registration
Statement:
1. The Company's Prospectus dated October 31, 1996, filed pursuant to
Rule 424(b)(4) of the Securities Act of 1933, as amended, with the
Securities and Exchange Commission (the "Commission") on November 1,
1996.
2. The description of the Shares set forth in the Company's Registration
Statement on Form 8-A, filed with the Commission on September 9, 1996,
under which the Company registered the Shares under Section 12(b) of
the Securities and Exchange Act of 1934, as amended (the "Exchange
Act").
All reports and other documents that the Company subsequently files
with the Commission pursuant to Sections 13(a), 13(c), 14, or 15(d) of the
Exchange Act, prior to the filing of a post-effective amendment indicating that
the Company has sold all of the securities offered under this Registration
Statement or that deregisters the distribution of all such securities then
remaining unsold, shall be deemed to be incorporated by reference into this
Registration Statement from the date that the Company files such report or
document. Any statement contained in this Registration Statement or any report
or document incorporated into this Registration Statement by reference, however,
shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained in a subsequently dated
report or document that is also considered part of this Registration Statement,
or in any amendment to this Registration Statement, is inconsistent with such
prior statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Inapplicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
(the "Delaware Corporation Law") gives Delaware corporation broad powers to
indemnify their present and former directors and officers against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection
2
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with threatened, pending or completed actions, suits or proceedings to which
they are parties or are threatened to be made parties by reason of being or
having been such directors or officers, subject to specified conditions and
exclusions; gives a director or officer who successfully defends an action the
right to be so indemnified; and permits a corporation to buy directors' and
officers' liability insurance. Such indemnification is not exclusive of any
other rights to which those indemnified be entitled under any by-law,
agreement, vote of stockholders or otherwise.
As permitted by Section 145 of the Delaware Corporation Law, Article VII
of the Bylaws of the Company provides for the indemnification by the Company of
its directors, officers, employees and agents against liabilities and expenses
incurred in connection with actions, suits or proceedings brought against them
by a third party or in the rights of the corporation, by reason of the fact that
they were or are such officers, employees or agents.
Article Eighth of the Company's Amended and Restated Certificate of
Incorporation, provides that to the fullest extent permitted by the Delaware
Corporation law as the same exists or may hereafter be amended, a director of
the company shall not be liable to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director.
Additionally, Primeco Inc., a Texas corporation and wholly owned
subsidiary of the Company, has entered into indemnification agreements with
certain present and former officers and directors of Primeco. These agreements,
among other things, indemnify such officers and directors for certain expenses
and all losses, claims, liabilities, judgments, fines and settlement amounts
incurred by such person arising out of or in connection with such person's
service as a director or officer of Primeco to the fullest extent permitted by
the Texas Business Corporation Act. Primeco also has obtained and maintains
policies of insurance under which its directors and officers will be insured,
within the limits and subject to the limitations of the policies, against
certain expenses in connection with the defense of, and certain liabilities
which might be imposed as a result of, actions, suits or proceedings to which
they are parties by reason of being or having been such officers or directors.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Inapplicable.
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ITEM 8. EXHIBITS.
EXHIBIT NO. DESCRIPTION
----------- --------------------------------------------------------
4.1 Prime Holding, Inc. Management Stock Incentive Plan
4.2 Prime Service, Inc. 1996 Management Stock Incentive Plan
5.1 Opinion of Gibson, Dunn & Crutcher LLP
23.1 Consent of Gibson, Dunn & Crutcher LLP
23.2 Consent of Coopers & Lybrand LLP
23.3 Consent of KPMG Peat Marwick LLP
23.4 Consent of KPMG Peat Marwick LLP
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
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, and (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
clauses (i) and (ii) do not apply if the information required to be
included in a post-effective amendment by those clauses is contained in
periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement;
(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; and
(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. FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY
REFERENCE. 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 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.
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C. REQUEST FOR ACCELERATION OF EFFECTIVE DATE OR FILING OF
REGISTRATION STATEMENT ON FORM S-8. 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 Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
[SIGNATURES ON THE NEXT PAGE]
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Houston, State of Texas, on this 5th day of November,
1996.
PRIME SERVICE, INC.
By: /s/ Thomas E. Bennett
---------------------------
Name: Thomas E. Bennett
Title: President
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated.
<TABLE>
<CAPTION>
NAME AND SIGNATURE TITLE DATE
- ---------------------------------- ------------------------------------- --------------------
<S> <C> <C>
/s/ Thomas E. Bennett President and Director November 5, 1996
- ----------------------------
Thomas E. Bennett
/s/ Brian Fontana Executive Vice President and Chief November 5, 1996
- ---------------------------- Financial Officer
Brian Fontana
/s/ John L. Latimer Controller, Assistant Treasurer and November 5, 1996
- ---------------------------- Assistant Secretary
John L. Latimer
/s/ Jon P. Hedley Director November 5, 1996
- ----------------------------
Jon P. Hedley
/s/ Christopher J. O'Brien Director November 5, 1996
- ----------------------------
Christopher J. O'Brien
/s/ Charles J. Philippin Director November 5, 1996
- ----------------------------
Charles J. Philippin
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Christopher J. Stadler Director November 5, 1996
- ----------------------------
Christopher J. Stadler
/s/ Robert M. Howe Director November 5, 1996
- ----------------------------
Robert M. Howe
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
------------- -------------------------------------------------
<S> <C>
4.1 Prime Holding, Inc. Management Stock Incentive
Plan (incorporated by reference to
Exhibit 10.3 to Primeco Inc.'s 1995 Annual
Report in Form 10-K filed with the Commission on
April 15, 1996).
4.2 Prime Service, Inc. 1996 Management Stock
Incentive Plan (incorporated by reference to
Exhibit 10.34 to the Company's Registration
Statement on Form S-1, File No. 333-11517,
originally filed with the Commission on
September 6, 1996).
5.1 Opinion of Gibson, Dunn & Crutcher LLP
23.1 Consent of Gibson, Dunn & Crutcher LLP (included
in Exhibit 5.1)
23.2 Consent of Coopers & Lybrand L.L.P.
23.3 Consent of KPMG Peat Marwick LLP
23.4 Consent of KPMG Peat Marwick LLP
</TABLE>
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EXHIBIT 5.1
November 5, 1996
(212) 351-4000 72661-00019
Prime Service, Inc.
16225 Park Ten Place, Suite 200
Houston, Texas 77084
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the
"Registration Statement") of Prime Service, Inc., a Delaware corporation (the
"Company"), filed with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), in connection with the issuance of up to 1,759,727 shares
(the "Shares") of Common Stock, par value $.01 per share, of the Company
pursuant to the Company's Management Stock Incentive Plan (the "1994 Stock
Incentive Plan") and the Company's 1996 Management Stock Incentive Plan (the
"1996 Stock Incentive Plan").
For the purposes of the opinion set forth below, we have examined and
are familiar with the proceedings taken by the Company in connection with the
issuance of the Shares, including, among other things, such corporate records
of the Company and certificates of officers of the Company and of public
officials and such other documents as we have deemed relevant and necessary as
the basis for the opinion set forth below. In such examination, we have
assumed the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies.
Based upon the foregoing examination and in reliance thereon, and
subject to the assumptions stated and relying on statements of fact contained
in the documents that we have examined, it is our opinion that, when (i) the
Registration Statement has become
<PAGE> 2
Prime Service, Inc.
November 5, 1996
Page 2
effective under the Securities Act and assuming that no stop order has been
issued by the Commission with respect thereto, (ii) the Shares have been issued
and sold as contemplated in the Registration Statement and in accordance with
the provisions of the 1994 Stock Incentive Plan or the 1996 Stock Incentive
Plan, as applicable, (iii) the Company has received consideration for the
Shares in excess of the par value of the Common Stock and as contemplated by
the 1994 Stock Incentive Plan or the 1996 Stock Incentive Plan, as applicable,
and (iv) the Shares have been duly delivered, the Shares will be legally
issued, fully paid and non-assessable.
We render no opinion herein as to matters involving the laws of any
jurisdiction other than the laws of the United States of America and the
General Corporation Law of the State of Delaware. In rendering this opinion,
we assume no obligation to revise or supplement this opinion should current
laws, or the interpretations thereof, be changed.
We consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not thereby admit that
we are within the category of persons whose consent is required under Section 7
of the Securities Act or the Rules and Regulations of the Commission.
Very truly yours,
GIBSON, DUNN & CRUTCHER LLP
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement on Form S-8 of our report dated August 30, 1996 ou our audits of the
consolidated financial statements of Prime Service, Inc. and Subsidiary, as
well as our report dated August 30, 1996 on our audits of Alpine Equipment
Rentals and Supply Company.
Coopers & Lybrand L.L.P.
Houston, Texas
November 5, 1996
<PAGE> 1
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to incorporation by reference in the registration statement on Form
S-8 of Prime Service, Inc., of our report dated January 28, 1994 relating to
the consolidated statement of operations, stockholders' equity and cash flows
for the year ended December 31, 1993.
/s/ KPMG PEAT MARWICK LLP
KPMG Peat Marwick LLP
Houston, Texas
November 4, 1996
<PAGE> 1
EXHIBIT 23.4
INDEPENDENT AUDITORS' CONSENT
The Board of Directors and Stockholder
Vibroplant U.S., Inc.:
We consent to incorporation by reference in the registration statement on Form
S-8 of Prime Service, Inc. of our report dated April 8, 1996, with respect to
the balance sheets of Vibroplant U.S., Inc. as of February 25, 1996 and March
31, 1995, and the related statements of operations, stockholder's equity and
cash flows for the period from April 1, 1995 through February 25, 1996, and for
each of the years in the two-year period ended March 31, 1995, which report
appears in the Form S-1 of Prime Service, Inc. dated October 31, 1996. Our
report refers to a change in the method of computing depreciation in 1995 and a
change in the method of accounting for income taxes in 1994.
/s/ KPMG PEAT MARWICK LLP
KPMG Peat Marwick LLP
Fort Worth, Texas
November 4, 1996
