<PAGE> 1
As electronically filed with the Securities and Exchange Commission on June 18,
1997
Registration No. 333-
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
ASA HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
GEORGIA 58-2258221
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
100 HARTSFIELD CENTRE PARKWAY, SUITE 800, ATLANTA, GEORGIA 30354
(Address of Principal Executive Office) (Zip Code)
ASA HOLDINGS, INC. 1997 NONQUALIFIED STOCK OPTION PLAN
(Full title of the plan)
GEORGE F. PICKETT
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
ASA HOLDINGS, INC.
100 HARTSFIELD CENTRE PARKWAY, SUITE 800
ATLANTA, GEORGIA 30354
(Name and address of agent for service)
(404) 766-1400
(Telephone number, including area code, of agent for service)
-------------------------------------------------------------
Copy to:
RICHARD W. PROBERT
ALTMAN, KRITZER & LEVICK, P.C.
6400 POWERS FERRY ROAD, SUITE 224
ATLANTA, GEORGIA 30339
(770) 955-3555
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED
PROPOSED MAXIMUM
TITLE OF MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO AMOUNT TO BE OFFERING OFFERING PRICE REGISTRATION
BE REGISTERED REGISTERED PRICE PER SHARE (1) (1) FEE
<S> <C> <C> <C> <C>
Class A Common
Stock, $.10 par
value per share 2,500,000 $25.8125 $64,531,250 $19,554.92
</TABLE>
(1) Estimated (based on the average of the high and low reported prices on June
16, 1997) solely for the purpose of calculating the registration fee pursuant to
Rule 457(c) under the Securities Act of 1933.
(2) Consists of 2,500,000 shares of common stock reserved for issuance upon the
exercise of options held pursuant to the ASA Holdings, Inc. 1997 Nonqualified
Stock Option Plan. This registration statement also relates to such
indeterminate number of additional shares of common stock as may be issuable as
a result of stock splits, stock dividends or additional similar transactions.
<PAGE> 2
EXPLANATORY NOTE
The section 10(a) prospectus being delivered by ASA Holdings, Inc. (the
"COMPANY") to participants in the ASA Holdings, Inc. 1997 Nonqualified Stock
Option Plan (the "PLAN"), as required by Rule 428 under the Securities Act of
1933, as amended (the "SECURITIES ACT"), has been prepared in accordance with
the requirements of Form S-8 and relates to shares of the Company's Common
Stock, par value $0.10 per share (the "COMMON STOCK"), reserved for issuance
upon the exercise of options held pursuant to the Plan. The information required
in the section 10(a) prospectus is included in documents being maintained and
delivered by the Company as required by Rule 428 under the Securities Act. The
Company shall provide to participants in the Plan a written statement advising
them of the availability without charge, upon written or oral request, of
documents incorporated by reference herein, as is required by Item 2 of Part I
of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed with the Securities and Exchange
Commission (File No. 333-13071) pursuant to the Securities Exchange Act of 1934,
as amended (the "EXCHANGE ACT"), are incorporated herein by reference.
1. The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996; and
2. The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31,1997; and
3. The Company's Proxy Statement dated April 16, 1997, with
respect to the Annual Meeting of Shareholders held May 21,
1997; and
4. The Company's Form S-4 Registration Statement (Registration
No. 333-13071), as electronically filed with the Commission on
September 30, 1996, as amended by Amendment No. 1 to Form S-4
Registration Statement, as electronically filed with the
Commission on November 7, 1996, as amended by Amendment No. 2
to Form S-4 Registration Statement, as electronically filed
with the Commission on November 13, 1996, as amended by Form
424(b)(3), as electronically filed with the Commission on
November 22, 1996 (collectively, the "REORGANIZATION
REGISTRATION STATEMENT"), which contains a description of the
Common Stock, including any amendment or report filed for the
purpose of updating such description; and
5. The Company's Periodic Report on Form 8-K dated April 28,
1997.
All other documents filed by the Company pursuant to sections 13(a), 13(c), 14
and 15(d) of the Exchange Act subsequent to the date of this registration
statement (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
part hereof from the date of 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 hereof to the extent
that a statement contained herein or in any subsequently filed document that is
or is deemed to be incorporated by reference herein modifies or supersedes such
document. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute any part hereof.
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Item 4. Description of Securities
Incorporated herein by reference to the description under the caption
"ASA HOLDINGS CAPITAL STOCK" beginning on page 20 of the Reorganization
Registration Statement, including any amendment or report filed for the purpose
of updating such description.
Item 5. Interests of Named Experts and Counsel
Certain legal matters in connection with the offering of the Holdings
Common Stock pursuant to this Registration Statement have been passed upon for
the Registrant by Altman, Kritzer & Levick, P.C., Atlanta, Georgia. Legal
matters with respect to Georgia law will be passed upon by Altman, Kritzer &
Levick, P.C., Atlanta, Georgia.
The consolidated financial statements of the Company appearing in the
Company's Annual Report (Form 10-K) for the fiscal year ended December 31, 1996,
have been audited by Ernst & Young LLP, independent auditors, as set forth in
their report thereon included therein and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by reference in
reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
Item 6. Indemnification of Directors and Officers
The Company's Articles of Incorporation provide that directors of the
Company will not be personally liable for monetary damages to the Company or its
shareholders for any action taken, or any failure to take any action, as
directors to the fullest extent permitted by the Georgia Business Corporation
Code (the "GBCC"). Under current Georgia law, directors would remain liable for:
(i) any appropriation, in violation of his duties, of any business opportunity
of the corporation; (ii) acts or omissions that involve intentional misconduct
or a knowing violation of law; (iii) approval of certain unlawful distributions
to shareholders in excess of amounts legally available for such distributions;
and (iv) any transaction from which the director received an improper personal
benefit. In appropriate circumstances, equitable remedies or nonmonetary relief,
such as an injunction, will remain available to a shareholder seeking redress
from any such violation. In addition, the provision applies only to claims
against a director arising out of his role as a director and not in any other
capacity (such as an officer or employee of the Company).
The Bylaws of the Company and the GBCC provide that the Company will
indemnify its directors and officers, and persons serving at the request of the
Company as a director, officer, partner, trustee, employee or agent of another
domestic or foreign corporation, partnership, joint venture, trust, employee
benefit plan or other entity, against all obligations to pay expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by any such person in connection with threatened, pending or
completed actions, suits or proceedings, whether civil, criminal, administrative
or investigative and whether formal or informal, to which such person becomes
subject by having served in such role. Such indemnification shall be made if
such person acted in good faith and he or she reasonably believed (x) in the
case of conduct in his or her official capacity, that such conduct was in the
best interests of the Company, (y) in all other cases that such conduct was at
least not opposed to the best interests of the Company and, (z) with respect to
any criminal proceeding, had no reasonable cause to believe his or her conduct
was unlawful. An individual's conduct with respect to an employee benefit plan
for a purpose he or she believed in good faith to be in the interests of the
participants and the beneficiaries is conduct that meets the above standard. The
termination of any action, suit or proceeding by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its equivalent, will not, of
itself, be determinative that such person did not meet the above standard. With
respect to actions by or on behalf of the Company, the foregoing indemnification
pursuant to the Bylaws shall not be paid for judgments, fines, or amounts paid
in settlement, but shall be paid for reasonable expenses (including attorneys'
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fees) actually incurred in connection with such actions, suits or proceedings.
Notwithstanding the foregoing, no indemnification shall be made in respect of
any claim, issue or matter as to which any person shall have been adjudged to be
liable to the Company unless and only to the extent that the court in which such
action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all relevant circumstances, it is fair
and reasonable to indemnify such person for such expenses which the court shall
deem proper.
Pursuant to the GBCC, indemnification is mandatory with respect to a
director or officer who is successful, on the merits or otherwise, with respect
to any claim, action, suit or proceeding of the character described above or any
issue or matter therein. In other cases, pursuant to the Company's Bylaws and
the GBCC, the Company will indemnify the persons discussed in the immediately
preceding paragraph only upon, at the option of the person to be indemnified,
one of the following procedures; (a) order of the court or administrative body
or agency having jurisdiction of the action, suit or proceeding, (b) if there
are two or more disinterested directors of the Company, a resolution adopted by
a majority vote of all disinterested directors of the Company (a majority of
whom shall for such purpose constitute a quorum) or by a majority of a committee
of two or more disinterested directors appointed by such a vote, or if such a
quorum of disinterested directors can not be obtained, by independent counsel in
a written opinion, (c) a resolution adopted by a majority in the interest of the
shares of the Company entitled to vote at any meeting, but shares owned by or
voted under the control of a director who at the time does not qualify as a
disinterested director may not be voted on the determination, or (d) order of
any court having jurisdiction over the Company. A majority of the members of the
Board of Directors of the Company who were not parties to such action, suit or
proceeding or a majority in interest of the shares of the Company entitled to
vote shall be authorized to pay to any person entitled to indemnification all
actual expenses incurred in connection with such action, suit or proceeding
during the pendency thereof.
Pursuant to Company's Bylaws and the GBCC, if any amounts are paid by
way of indemnification, other than pursuant to a court order or action by the
shareholders or by an insurance carrier pursuant to insurance maintained by
Company, then Company is required to send notice to all shareholders of record
of the person paid, the amounts paid and the status at the time of such payment
of the ligation or threatened litigation.
The Company maintains a directors' and officers' liability insurance
policy covering certain losses arising from claims made against them by reason
of wrongful acts (with certain exceptions) committed by them in their capacities
as directors and officers of the Company and its subsidiaries. The insurer's
limit of liability under the policy is $10 million per policy year, subject to
the exceptions and other limitations set forth therein. The Company also
maintains a directors' and officers' excess liability insurance policy covering
certain losses arising from claims made against them by reason of wrongful acts
(with certain exceptions) committed by them in their capacities as directors and
officers. The insurer's limit of liability under this policy is also $10 million
per policy year, subject to the exceptions and other limitations set forth
therein.
In addition to such other rights of indemnification as they may have as
directors or members of the Compensation Committee of the Company's Board of
Directors (the "COMMITTEE"), pursuant to the Plan, the members of the Committee
will be indemnified by the Company against the reasonable expenses, including
attorneys' fees actually and necessarily incurred in connection with the defense
of any 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 the Company) or paid by them in
satisfaction of a judgment in any such 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 gross negligence or misconduct in the performance
of his or her duties; provided that within sixty (60) days after institution of
any such action, suit or proceeding, a Committee member shall in writing offer
the Company the opportunity at its own expense, to handle and defend the same.
5
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Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling Company
pursuant to the foregoing provisions, the Commission requires disclosure that in
the opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is, in their opinion, therefore
unenforceable.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
4.1 - Articles of Incorporation of the Company. (Incorporated by
reference to Exhibit No. 3(a) to the Reorganization
Registration Statement.)
4.2 - Bylaws of the Company. (Incorporated by reference to Exhibit
No. 3(b) to the Reorganization Registration Statement.)
5.1 - Opinion of Altman, Kritzer & Levick, P.C. as to the legality
of shares of Common Stock being registered.
23.1 - Consent of Ernst & Young LLP, dated June 17, 1997.
23.2 - Consent of Altman, Kritzer & Levick, P.C. (Included in their
opinion filed as Exhibit 5.1.)
24 - Power of Attorney. (Included on signature page of this
Registration Statement.)
Item 9. Undertakings
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 to include any material information with respect to
the plan of distribution not previously disclosed in this registration statement
or any material change to such information in this 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; 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.
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 this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the registrant's articles of incorporation or
by-laws, by contract, or otherwise, the registrant 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 registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the
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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 begin on next page]
7
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all 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 18, 1997.
ASA HOLDINGS, INC.
By: /s/ George F. Pickett
----------------------------------------------
George F. Pickett, Chairman of the Board and Chief
Executive Officer (Principal Executive Officer)
We, the undersigned officers and directors of ASA Holdings, Inc.,
hereby severally constitute George F. Pickett and John W. Beiser and each of
them singly, our true and lawful attorneys with full power to them, and each of
them singly, to sign for us and in our names in the capacities indicated below,
any and all amendments, including post-effective amendments, to this
Registration Statement, and generally do all such things in our name and behalf
in such capacities to enable ASA Holdings, Inc. to comply with the applicable
provisions of the Securities Act of 1933, as amended, and all requirements of
the Securities and Exchange Commission, and we hereby ratify and confirm our
signatures as they may be signed by our said attorneys, or either of them, to
any and all such amendments.
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 the day and date indicated.
<TABLE>
<S> <C>
/s/ George F. Pickett June 18, 1997
- ----------------------------------------------------
George F. Pickett, Chairman of the Board
and Chief Executive Officer (Principal
Executive Officer) and Director
/s/ John W. Beiser June 18, 1997
- ----------------------------------------------------
John W. Beiser, President, Secretary and Director
/s/ Ronald V. Sapp June 18, 1997
- ----------------------------------------------------
Ronald V. Sapp, Senior Vice President-Finance
(Principal Financial and Accounting Officer)
</TABLE>
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
<PAGE> 9
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
<TABLE>
<S> <C>
/s/ Jean A. Mori June 18, 1997
- -------------------------
Jean A. Mori, Director
/s/ Parker H. Petit June 18, 1997
- -------------------------
Parker H. Petit, Director
/s/ Alan M. Voorhees June 18, 1997
- -------------------------
Alan M. Voorhees, Director
/s/ Ralph W. Voorhees June 18, 1997
- -------------------------
Ralph W. Voorhees, Director
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIAL
EXHIBITS PAGE NUMBER
- -------- -----------
<S> <C> <C>
4.1 Articles of Incorporation of the Company. (Incorporated by reference to
Exhibit No. 3(a) to the Reorganization Registration Statement.)
4.2 Bylaws of the Company. (Incorporated by reference to Exhibit No. 3(b) to
the Reorganization Registration Statement.)
5.1 Opinion of Altman, Kritzer & Levick, P.C. as to the legality of shares of 11
Common Stock being registered.
23.1 Consent of Ernst & Young LLP, dated June 17, 1997. 12
23.2 Consent of Altman, Kritzer & Levick, P.C. (Included in their opinion filed
as Exhibit 5.1.)
24 Power of Attorney. (Included on signature page of this Registration
Statement.)
</TABLE>
<PAGE> 1
Exhibit 5.1
[ALTMAN, KRITZER & LEVICK, P.C. LETTERHEAD]
June 18, 1997
ASA Holdings, Inc.
Suite 800
100 Hartsfield Centre Parkway
Atlanta, Georgia 30354
Re:Form S-8 Registration Statement (the "REGISTRATION STATEMENT")
relating to shares of Common Stock, $0.10 par value per share, of ASA
Holdings, Inc. (the "COMMON STOCK"), and the ASA Holdings, Inc. 1997
Nonqualified Stock Option Plan (the "PLAN")
Gentlemen:
We have acted as counsel for ASA Holdings, Inc., a Georgia corporation
(the "COMPANY"), in connection with the preparation and filing by the Company of
the Registration Statement with respect to the registration of the shares of
Common Stock offered and sold pursuant to the terms of the Plan.
As such counsel, we have examined and relied upon such records,
documents, certificates and other instruments as in our judgment are necessary
or appropriate to form the basis for the opinion hereinafter set forth. In all
such examinations, we have assumed the genuineness of signatures on original
documents and the conformity to such original documents of all copies submitted
to us as certified, conformed or photographic copies, and as to certificates of
public officials, we have assumed the same to have been properly given and to be
accurate.
Based upon the foregoing, we are of the opinion that the proposed
issuance of up to 2,500,000 shares of Common Stock under the Plan has been duly
authorized, and, when issued in accordance with the terms set forth in the Plan,
such shares will be validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as an Exhibit to the
Registration Statement and related Prospectus pertaining to the Plan and to the
reference to us under the caption "Interests of Named Experts and Counsel" in
the Registration Statement.
Very truly yours,
ALTMAN, KRITZER & LEVICK, P.C.
By: /s/ Richard W. Probert
--------------------------
Richard W. Probert
11
<PAGE> 1
Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Interests
of Named Experts and Counsel" in the Registration Statement (Form S-8)
pertaining to the ASA Holdings, Inc. 1997 Nonqualified Stock Option Plan and to
the incorporation by reference therein of our report dated January 31, 1997,
with respect to the consolidated financial statements and schedules of ASA
Holdings, Inc. included in its Annual Report (Form 10-K) for the year ended
December 31, 1996, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Atlanta, Georgia
June 17, 1997
12
