<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 27, 1998
REGISTRATION NO. 333-
-----
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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 Offices)
ASA HOLDINGS, INC. 1998 NONQUALIFIED STOCK OPTION PLAN
FOR NON-EMPLOYEE DIRECTORS
(Full Title of the Plan)
------------------------------------
GEORGE F. PICKETT
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
100 HARTSFIELD CENTRE PARKWAY, SUITE 800
ATLANTA, GEORGIA 30354
(404) 766-1400
(Name, address and telephone number, including area code, of Agent for Service)
The Commission is requested to mail signed copies of all orders, notices and
communications to:
PATRICIA A. WILSON, ESQ.
TROUTMAN SANDERS LLP
600 PEACHTREE STREET, N.E.
SUITE 5200, NATIONSBANK PLAZA
ATLANTA, GEORGIA 30308-2216
(404) 885-3000
------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================================
Title of securities to Amount to be Proposed maximum Proposed maximum Amount of
be registered registered (1) offering price per Share (2) aggregate offering price(2) registration fee (2)
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par
value $.10 per share 250,000 shares $36.0625 $9,015,625 $2,659.61
===================================================================================================================================
</TABLE>
(1) Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the
"Securities Act"), this registration statement also covers an
indeterminate number of additional shares which may be offered and
issued to prevent dilution resulting from stock splits, stock
dividends or similar transactions as provided in the above-referenced
plan.
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(h)(1) based on the average high and low prices on
May 19, 1998 as reported on the Nasdaq National Market.
================================================================================
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The undersigned registrant (the "Company" or "Registrant") hereby
incorporates by reference into this registration statement the following
documents:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1997;
(b) The Registrant's Quarterly Report on Form 10-Q for the period
ended March 31, 1998;
(c) All other reports filed by the Registrant pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), since the end of the
fiscal year covered by the annual report referred to in (a)
above; and
(d) The description of the Registrant's capital stock contained
in its registration statement on Form S-4, filed with the
Commission on September 30, 1996, as amended by Amendment No.
1 to the Form S-4 registration statement filed with the
Commission on November 7, 1996, as amended by Amendment No. 2
to the Form S-4 registration statement filed with the
Commission on November 13, 1996, as amended by the
Registrant's Rule 424(b) prospectus filed with the Commission
on November 22, 1996, including any amendment or report filed
for the purpose of updating such description (collectively,
the "Reorganization Registration Statement").
All documents filed subsequent to the date of this registration
statement by the undersigned Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act prior to the filing of a post-effective amendment
hereto which indicates that all shares of Common Stock offered hereby have been
sold or which deregisters any shares of such Common Stock then remaining
unsold, shall also be deemed to be incorporated by reference in this
registration statement and to be a part hereof from their respective dates of
filing. 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 that also is or
is deemed to be incorporated by reference herein, modifies or supersedes such
statement. Any statement contained in this registration statement shall be
deemed to be modified or superseded to the extent that a statement contained in
a subsequently filed document which is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this registration statement.
II-2
<PAGE> 3
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
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, a director 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' fees) actually incurred in
connection with such actions, suits or proceedings. Notwithstanding the
II-3
<PAGE> 4
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, at the option of the person to be indemnified,
in accordance with 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 the 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
the Company, then the 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 litigation 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 $15 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 $15 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
II-4
<PAGE> 5
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.
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 therefore is, in
the opinion of the Commission, unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The following exhibits are filed as part of this registration
statement:
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<S> <C>
5 Opinion of Troutman Sanders LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Troutman Sanders LLP (contained
in its opinion filed as Exhibit 5)
24 Powers of Attorney (contained on signature
page hereof)
</TABLE>
ITEM 9. UNDERTAKINGS
(a) Rule 415 offerings. 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 of 1933;
II-5
<PAGE> 6
(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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or
high and of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
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
with or furnished to the Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining anyliability 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) Filings incorporating subsequent Exchange Act documents 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 Exchange Act
(and, where applicable, each filing of an employee benefit plan's annual report
pursuant to 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.
II-6
<PAGE> 7
(h) Filing of registration statement on Form S-8. 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 foregoing provisions, 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 Securities 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 Securities Act and will be governed
by the final adjudication of such issue.
II-7
<PAGE> 8
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 this 27th day of
May, 1998.
ASA HOLDINGS, INC.
By: /s/ George F. Pickett
-----------------------------------------
George F. Pickett
Chairman of the Board of Directors and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints George F. Pickett and John W. Beiser,
and each of them, his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all 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 full power and
authority to do and to perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully and to all intents and
purposes as he might or would do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or their 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 indicated as of May 27, 1998.
Signature Title
/s/ George F. Pickett Chairman of the Board of Directors and Chief
- ------------------------------ Executive Officer
George F. Pickett (Principal Executive Officer)
/s/ John W. Beiser President, Secretary and Director
- ------------------------------
John W. Beiser
/s/ Ronald V. Sapp Senior Vice President--Finance and Chief
- ------------------------------ Financial Officer
Ronald V. Sapp (Principal Financial and Accounting Officer)
<PAGE> 9
SIGNATURES
Signature Title
- --------- -----
/s/ George Berry Director
- --------------------------------
George Berry
/s/ Jean A. Mori Director
- --------------------------------
Jean A. Mori
/s/ Parker H. Petit Director
- --------------------------------
Parker H. Petit
/s/ Alan M. Voorhees Director
- --------------------------------
Alan M. Voorhees
/s/ Ralph W. Voorhees Director
- --------------------------------
Ralph W. Voorhees
<PAGE> 10
<TABLE>
<CAPTION>
EXHIBIT INDEX
-------------
Exhibit
Number Description
------ -----------
<S> <C>
5 Opinion of Troutman Sanders LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Troutman Sanders LLP (contained in its opinion filed as Exhibit 5)
24 Powers of Attorney (contained on signature page hereof)
</TABLE>
<PAGE> 1
EXHIBIT 5
OPINION OF TROUTMAN SANDERS LLP
Troutman Sanders LLP
NationsBank Plaza
600 Peachtree Street N.E., Suite 5200
Atlanta, Georgia 30308-2216
Telephone: (404) 885-3000
Facsimile: (404) 885-3995
May 27, 1998
ASA Holdings, Inc.
100 Hartsfield Centre Parkway
Suite 800
Atlanta, Georgia 30354
Attention: Mr. George F. Pickett
Re: Registration Statement on Form S-8
ASA Holdings, Inc. 1998 Nonqualified Stock Option Plan
for Non-Employee Directors
Ladies and Gentlemen:
We have examined a copy of the registration statement on Form S-8
proposed to be filed by ASA Holdings, Inc. (the "Company"), with the Securities
and Exchange Commission (the "Commission"), relating to the registration
pursuant to the provisions of the Securities Act of 1933, as amended (the
"Act"), of 250,000 shares (the "Shares") of the Company's Common Stock, par
value $.10 per share (the "Common Stock"), reserved for issuance in connection
with options to be granted under the Company's 1998 Nonqualified Stock Option
Plan for Non-Employee Directors (the "Plan"). In rendering this opinion, we
have reviewed such documents and made such investigations as we deemed
appropriate.
We are of the opinion that, subject to compliance with the pertinent
provisions of the Act and to compliance with such securities or "Blue Sky" laws
of any jurisdiction as may be applicable, when certificates evidencing the
Shares have been duly executed, countersigned, registered, issued and delivered
in accordance with the terms of the Plan and the respective stock option
agreements entered into, under and in accordance with the Plan, the Shares will
be duly and validly issued and outstanding, fully paid and non-assessable
shares of Common Stock of the Company.
<PAGE> 2
We are members of the Bar of the State of Georgia. In expressing the
opinions set forth above, we are not passing on the laws of any jurisdiction
other than the laws of the State of Georgia and the Federal law of the United
States of America.
We hereby consent to the filing of this opinion or copies thereof as
an exhibit to the registration statement referred to above.
Sincerely,
/s/ Troutman Sanders LLP
TROUTMAN SANDERS LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the ASA Holdings, Inc. 1998 Nonqualified Stock Option
Plan for Non-Employee Directors of our reports dated January 30, 1998 except for
the last paragraph of Note G as to which the date is March 12, 1998, with
respect to the consolidated financial statements and schedule of ASA Holdings,
Inc. included in its Annual Report (Form 10-K) for the year ended December
31, 1997, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Atlanta, Georgia
May 22, 1998
