As filed with the Securities and Exchange Commission on January 7, 1998.
File No. 333-________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PAMECO CORPORATION
--------------------------------------------------
(Exact Name of Issuer as Specified in its Charter)
Georgia 51-0287654
- ------------------------------- ----------------------
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
1000 Center Place
Norcross, Georgia 30093
(404) 798-0700
- ----------------------------------------------------------------------
(Address and Telephone Number of Issuer's Principal Executive Offices)
Pameco Corporation 1997 Employee Stock Purchase Plan
----------------------------------------------------
(Full Title of the Plan)
Mary McCulley
1000 Center Place
Norcross, Georgia 30093
(770) 798-0700
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(Name, Address and Telephone Number, Including Area Code, of
Agent for Service)
Copies to:
James Steinberg, Esq.
KILPATRICK STOCKTON LLP
1100 Peachtree Street, N.E.
Atlanta, Georgia 30309-4530
(404) 815-6500
<TABLE>
<CAPTION>
Calculation of Registration Fee
- -----------------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum
Title of Securities Amount to Offering Price Aggregate Amount of
to be Registered be Registered Per Share Offering Price<F1> Registration Fee
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock 500,000 shares $18.34 $9,170,000 $2,705.15
<FN>
<F1> Determined in accordance with Rule 457(c) under the Securities Act of
1933, based on $18.34, the average of the high and low prices on the New
York Stock Exchange on December 31, 1997.
</FN>
/TABLE
<PAGE>
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are incorporated by
reference into this Registration Statement and are deemed to be a
part hereof from the date of the filing of such documents:
(1) The Registrant's Prospectus dated June 4, 1997, filed
pursuant to Rule 424(b) under the Securities Act of
1933, as amended (the "Securities Act").
(2) All other reports filed by the Registrant pursuant to
Section 13(a) or 15(d) of Securities Exchange Act of
1934, as amended (the "Exchange Act"), since the filing
of the Prospectus.
(3) The description of the Class A Common Stock contained
in the Registrant's registration statement on Form 8-A,
dated March 26, 1997, including all amendments or
reports filed for the purpose of updating such
description.
(4) All other documents subsequently filed by the
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 which indicates that all
securities offered pursuant to this Registration
Statement have been sold or which deregisters all
securities that remain unsold.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As provided under Georgia law, the Company's Articles
of Incorporation provide that a director shall not be
personally liable to the Company as a director, except
that such provisions shall not limit the liability of a
director (a) for any appropriation, in violation of his
duties, of any business opportunity of the Company; (b) for
acts or omissions which involve intentional misconduct or
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a knowing violation of law; (c) for unlawful corporate
distributions or (d) for any transactions from which the
director receives an improper benefit.
Under Article V of the Company's Bylaws, the Registrant
is required to indemnify its directors and officers to
the fullest extent permitted by Georgia law. The
Georgia Business Corporation Code provides that a
corporation may indemnify its directors, officers and
agents against judgments, fines, penalties, amounts
paid in settlement and expenses, including attorneys'
fees, resulting from various types of legal actions or
proceedings if the actions of the party being
indemnified meet the standards of conduct specified
therein. Determinations concerning whether the
applicable standard of conduct has been met can be made
by (a) a majority of the disinterested directors; (b) a
majority of a committee of disinterested directors; (c)
independent legal counsel or (d) an affirmative vote of
a majority of shares held by the disinterested
shareholders. No indemnification may be made to or on
behalf of a corporate director, officer, employee or
agent (i) in connection with a proceeding by or in
right of the Company in which such person was adjudged
liable to the Company or (ii) in connection with any
other proceeding in which said person was adjudged
liable on the basis that personal benefit was
improperly received by him.
The Company has entered into Indemnification Agreements
with certain of its directors and officers (the
"Indemnified Parties"). Under the terms of the
Indemnification Agreements, the Company is required to
indemnify the Indemnified Parties against certain
liabilities arising out of their service for the
Company. The Indemnification Agreements require the
Company (i) to indemnify each Indemnified Party to the
fullest extent permitted by law; (ii) to provide
coverage for each Indemnified Party under the Company's
directors and officers liability insurance policy and
(iii) to advance certain expenses incurred by an
Indemnified Party. The Indemnification Agreements
provide limitations on the Indemnified Party's rights
to indemnification in certain circumstances.
The Company's directors and officers are insured
against losses arising from any claim against them as
such for wrongful acts or omissions, subject to certain
limitations.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
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ITEM 8. EXHIBITS
The exhibits included as part of this Registration Statement are
as follows:
Exhibit Number Description
- -------------- -----------
4 Pameco Corporation 1997 Employee
Stock Purchase Plan.
5 Opinion and Consent of Kilpatrick
Stockton LLP, counsel to the
Registrant
23 Consent of Ernst & Young LLP
ITEM 9. UNDERTAKINGS
(a) 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 the Registration
Statement or any material change to such information 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; (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 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.
(c) 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 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
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<PAGE>
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.
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<PAGE>
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 Atlanta, State of Georgia, on January 7, 1998.
PAMECO CORPORATION
By: /s/ Theodore R. Kallgren
-------------------------------
Theodore R. Kallgren
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Theodore R.
Kallgren as attorney-in-fact, having the power of substitution,
for him in any and all capacities, to sign any amendments to this
Registration Statement on Form S-8 and to file the same, with
exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorney-in-fact, or his substitute or
substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons
in the capacities indicated on January 7, 1998.
/s/ James R. Balkcom, Jr. Chairman
JAMES R. BALKCOM, Jr.
/s/ Gerald V. Gurbacki Chief Executive Officer and Director
GERALD V. GURBACKI (Principal Executive Officer)
/s/ Theodore R. Kallgren Chief Financial Officer
THEODORE R. KALLGREN (Principal Financial and Accounting
Officer)
/s/ G. Thomas Braswell, Jr. Director
G. THOMAS BRASWELL, Jr.
___________________________ Director
MICHAEL H. BULKIN
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<PAGE>
__________________________ Director
EARL DOLIVE
/s/ H. Whitney Wagner Director
H. WHITNEY WAGNER
/s/ Thomas G. Weld Director
THOMAS G. WELD
/s/ Richard Bearse Director
RICHARD BEARSE
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<PAGE>
EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8
Exhibit Number Description
- -------------- -----------
4 Pameco Corporation 1997 Employee Stock
Purchase Plan.
5 Opinion and Consent of Kilpatrick Stockton
LLP, counsel to the Registrant
23 Consent of Ernst & Young LLP
PAMECO CORPORATION
1997 EMPLOYEE STOCK PURCHASE PLAN
1. ESTABLISHMENT AND DURATION OF PLAN
PAMECO CORPORATION ("PAMECO") hereby establishes the
1997 Employee Stock Purchase Plan (the "Plan"), under which
employees of PAMECO and its subsidiaries have the right pursuant
to options granted under the Plan to purchase shares of the Class
A Common Stock, par value $0.01 per share, of PAMECO (the "Common
Stock") through payroll deductions. It is intended that the Plan
shall qualify under the provisions of Section 423 of the Internal
Revenue Code of 1986, as amended (the "Code"). The Plan shall be
effective on January 1, 1998 (the "Effective Date"), subject to
any registration requirements under the Securities Act of 1933,
as amended (the "Act"), and the approval of stockholders of
PAMECO under Section 423 of the Code. The Plan shall continue
until terminated in accordance with Section 9.
2. ADMINISTRATION
The Plan shall be administered by an Administrator (the
"Administrator") who shall be appointed by the Board of Directors
of PAMECO (the "Board"). The Board may appoint as the
Administrator an individual or a committee (which may be an
existing or a newly formed committee of the Board). Subject to
the provisions hereof, the Administrator shall have plenary
authority in its discretion to interpret and administer the Plan,
including the right to adjust the number of shares of Common
Stock for which an Option is exercised if the limit on the number
of shares which may be purchased under Section 5(a) would be
exceeded in the absence of such adjustment and the right to
define the employees of PAMECO entitled to participate herein.
Except as to matters which are herein expressly reserved for
determination by the Board, the Administrator's decisions and
determinations in the administration hereof shall be final,
conclusive and binding upon all persons, including, but not
limited to, PAMECO and its subsidiaries, their shareholders and
directors and any persons having any interests in any options
which are granted hereunder.
3. PARTICIPATION
(a) Grant of Options. Except as otherwise
provided herein, each employee of PAMECO or of any corporation,
partnership or other legal entity at least 50% of the voting
securities of which are owned directly or indirectly by PAMECO (a
"Subsidiary"), including, but not limited to, any corporation
which becomes a Subsidiary of PAMECO on or after the adoption
hereof, shall automatically on the later of the Effective Date or
the first day of the next calendar quarter following such
employee's employment commencement date, be granted an option (an
"Option") hereunder to purchase shares of Common Stock (employees
to whom Options are granted are hereinafter sometimes referred to
as "Participants"), which Option shall continue through such
calendar quarter and shall be granted anew on the first day of
each succeeding calendar quarter. Each such quarterly period, or
portion thereof with respect to the initial period, is referred
to herein as an "Option Period".
(b) Five Percent Shareholders. Notwithstanding
the foregoing, an employee cannot be granted an Option if such
employee, immediately after the Option was granted, would own
<PAGE>
stock possessing 5% or more of the total combined voting power or
value of all classes of stock of PAMECO. For this purpose, an
employee shall be considered as owning the stock owned, directly
or indirectly, by or for his brothers and sisters (whether by the
whole or half blood), spouse, ancestors and lineal descendants,
and stock owned, directly or indirectly, by or for a corporation,
partnership, estate or trust shall be considered as being owned
proportionately by or for its shareholders, partners or
beneficiaries. In addition, an employee is considered for this
purpose as also owning stock which he or she may purchase under
any outstanding stock options (including an Option). No Option
shall be exercisable for shares of Common Stock except to the
extent of that number of shares which would not cause the
Participant to whom such Option is granted to be a five percent
or more shareholder as described above.
(c) Rights and Privileges. All employees of
PAMECO or any of its Subsidiaries shall have the same rights and
privileges hereunder, except that the amount of Common Stock
which may be purchased by any employee under an Option will bear
a uniform relationship to the total compensation of employees in
accordance with the maximum authorized payroll deduction or other
limitations as set forth in Section 4(b).
4. TERMS AND CONDITIONS OF OPTIONS
Options are intended to qualify under Section 423 of
the Code for favorable tax treatment. Each Option shall be
evidenced by such written document as may be prescribed by the
Administrator or its designee. Options and their exercise shall
be subject to the following requirements:
(a) Option Price. The price to be paid for
Common Stock upon exercise of an Option through payroll
deductions is 85% of the average of (x) the Fair Market Value (as
defined below) of the Common Stock on the first day of the Option
Period and (ii) the Fair Market Value of the Common Stock on the
last day of the Option Period. "Fair Market Value" shall be
determined as follows:
(i) If, on the relevant date, the Common Stock is
traded on a national or regional securities exchange or on
The Nasdaq Stock Market ("Nasdaq") and closing sale prices
are customarily quoted, on the basis of the average of the
closing sale price on such principal securities exchange on
which the Common Stock may then be traded over a period of
five consecutive trading days consisting of the business day
immediately preceding the day the Fair Market Value is being
determined and the four business days prior to such day or,
if there is no such sale on any such relevant date, then on
the immediately preceding day on which a sale was reported;
(ii) If, on the relevant date, the Common Stock is
not listed on any securities exchange or traded on Nasdaq,
but nevertheless is publicly traded and reported on Nasdaq
without closing sale prices being customarily quoted, on the
basis of the average of the mean between the closing bid and
asked quotations in such other over-the-counter market as
reported by Nasdaq over a period of five consecutive trading
days consisting of the business day immediately preceding
the day the Fair Market Value is being determined and the
four business days prior to such day; but, if there are no
bid and asked quotations in the over-the-counter market as
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reported by Nasdaq on any such date, then the mean between
the closing bid and asked quotations in the over-the-counter
market as reported by Nasdaq on the immediately preceding
day such bid and asked prices were quoted; and
(iii) If, on the relevant date, the Common
Stock is not publicly traded as described in (i) or (ii), on
the basis of the good faith determination of the
Administrator.
(b) Manner of Exercise and Payment.
(i) In order to exercise an Option, a Participant
must authorize payroll deductions in advance for future pay
periods, which, if allowed by the Administrator or its
designee, do not necessarily have to be taken for each
consecutive pay period. Such payroll deductions may not
exceed, in the aggregate for any calendar year, ten percent
(10%) of the total annual salary, wages and bonuses paid
such Participant for the respective calendar year. The
Administrator or its designee may, in its sole discretion,
establish a minimum amount of any such payroll deduction to
the Administrator or its designee, and/or may require that
any payroll deduction must be made in whole percentages
(i.e., 1%, 2%, 3%, etc.) and not in any fraction of a
percentage. Such payroll deduction authorizations shall be
made by filing with the Administrator or its designee a
completed form prescribed or approved by the Administrator
or its designee. The amount of all payroll deductions
authorized by a Participant pursuant to the Plan shall be
held by the Company in a non-interest bearing account
pending the exercise of Options as provided herein.
(ii) In addition to the limitations in Section
4(b)(i), dividends paid on shares of Common Stock purchased
by a Participant upon exercise of an Option, the
certificates for which are held by PAMECO or its designee as
nominee for such Participant, shall be added to the payroll
deduction taken on or next following the respective dividend
payment date, and for purposes of an exercise of an Option
and the purchase of Common Stock pursuant thereto, shall be
deemed a portion of the respective payroll deduction.
(iii) An Option shall be deemed to be
exercised automatically on the last day of each Option
Period during which a payroll deduction is taken. Such
Option shall be exercised each such time to the extent of
the number of full shares of Common Stock which may be
purchased with the amount then deducted from the respective
Participant's pay. Any amount remaining because such
remaining amount was not sufficient to purchase a full share
may be retained by PAMECO for the Participant's account and
applied to the purchase price of shares of Common Stock
pursuant to subsequent exercises of such Option.
(iv) A Participant may prospectively change the
amount authorized as payroll deductions or discontinue
payroll deductions, effective as of the time specified, by
filing a notice to such effect with the Administrator or its
designee on a form prescribed by the Administrator or its
designee; provided, however, that no such change in the
amount of payroll deductions shall be effective prior to the
later of the first day of the calendar quarter following the
-3-<PAGE>
filing of such notice or ten (10) days after the filing of
such notice; and, further provided, that a discontinuance of
payroll deductions shall be effective upon the expiration of
thirty (30) days after the filing of a notice to discontinue
payroll deductions and such Participant may not resume
payroll deductions until the expiration of ninety (90) days
from the date of discontinuance. Such change or
discontinuance shall be effective thereafter until another
election, authorizing a payroll deduction, is filed with the
Administrator or its designee in the manner described above.
Options may only be exercised by paying the Option price
through a payroll deduction (including dividend payments) as
provided above.
(c) Term of Option. No Option may be exercised
after the expiration of the calendar quarter in which the Option
is initially granted, and thus each Option shall expire upon the
expiration of the calendar quarter in which it was initially
granted. Upon expiration of an Option, the Administrator, in its
sole discretion, may, on the date immediately following the date
of expiration of such Option or thereafter, grant a new Option to
the employee whose Option so expired. Notwithstanding the
foregoing, all Options will expire at such time as the maximum
aggregate number of shares of Common Stock available hereunder,
as set forth in the Section 5(a), has been acquired pursuant to
the exercise of Options, and an Option will expire upon the
effective date of termination of the employment of the
Participant to whom such Option has been granted or on the date
of his or her death. Upon termination of a Participant's
employment for any reason (other than death while in the employ
of the Company), all authorized payroll deductions shall be
returned to such Participant. Upon termination of a
Participant's employment because of his or her death, such
Participant's beneficiary most recently designated by such
Participant on a form prescribed by the Administrator or its
designee (or by such Participant's estate if such Participant
makes no such designation) shall have the right to elect, by
written notice to the Administrator prior to the earlier of (i)
the last day of the Option Period in which the Participant's
death occurred and (ii) the expiration of a period of sixty (60)
days from the date of the Participant's death, either (x) to
withdraw all of the authorized payroll deductions under the Plan
or (y) to exercise such Participant's Options on last day of the
Option Period in which the Participant's death occurred for the
purchase of the number of full shares of Common Stock which the
accumulated payroll deductions at the date of the Participant's
death will purchase at the applicable option price, in which case
any excess in such account will be returned to said estate,
without interest. In the event that no such written notice of
election shall be duly received by the Administrator, such
Participant's beneficiary (or estate) shall automatically be
deemed to have elected to exercise such Participant's Options.
(d) Options Non-Assignable. Except as set forth
in Section 4(c), an Option shall be exercisable only by the
Participant to whom such Option has been granted, and no Option
shall be assignable by any Participant.
(e) Voting and Other Rights as a Shareholder.
Each Participant shall have full shareholder rights with respect
to all shares of Common Stock purchased upon exercise of an
Option, including, but not limited to, voting, dividend and
liquidation rights. Shares for which an Option has been
-4-<PAGE>
exercised but which are held in the name of PAMECO or its agent
for a Participant's account will be covered by proxies provided
to such Participant by PAMECO. A Participant shall have no
rights as a shareholder with respect to shares subject to an
Option for which such Option has not then been exercised.
(f) Annual $25,000 Limit. No employee may be
granted an Option which permits such employee to purchase Common
Stock hereunder and under any other plans qualifying under
Section 423 of the Code of PAMECO and its Subsidiaries, taken in
the aggregate, to accrue at a rate which exceeds $25,000 of Fair
Market Value of such Common Stock (determined at the time the
Option is granted) for each calendar year in which such Option is
outstanding at any time. For purposes hereof (i) the right to
purchase Common Stock under an Option accrues when the Option (or
any portion thereof) first becomes exercisable during the
calendar year; (ii) the right to purchase Common Stock under an
Option accrues at the rate provided in the Option, but in no case
may such rate exceed $25,000 of Fair Market Value of Common Stock
(determined at the time such Option is granted) for any one
calendar year; and (iii) a right to purchase Common Stock which
has accrued under one Option may not be carried over to any other
Option. Subject to the other limitations herein, if a
Participant does not purchase the maximum amount of Common Stock
in a given calendar year, the excess of $25,000 over the amount
of Common Stock purchased may be carried over to a subsequent
year for a later purchase. Thus, a Participant may purchase
$25,000 of Common Stock for the year of purchase and, in
addition, that amount for each of the preceding years during
which the Option was outstanding to the extent that the $25,000
ceiling was not purchased in the preceding year. However, a
Participant may not purchase Common Stock in anticipation that
the limit will not be used in future years.
5. SHARES SUBJECT TO OPTION
(a) No more than an aggregate of five hundred
thousand (500,000) shares of Common Stock, including a maximum of
100,000 shares in any calendar year, may be purchased or issued
pursuant to the exercise of Options, provided, however, such
number of shares shall automatically be adjusted from and after
the Effective Date to reflect appropriately any of the following
events: (i) any stock split in the form of a stock dividend
payable in shares of Common Stock; (ii) any recapitalization,
reclassification, split-up, consolidation of, or other change in,
the Common Stock; or (iii) an exchange of the then outstanding
shares of Common Stock, in connection with a merger,
consolidation, share exchange or other reorganization of PAMECO;
provided, however, that no such adjustment shall be made in
connection with the merger of Pameco with and into New Pameco
Georgia Corporation.
(b) PAMECO will, in accordance with and to the
extent of the exercise of each Option, apply all payroll
deductions on behalf of Participants to the purchase of full
shares of Common Stock for the account of the respective
Participant. Such shares may be made available from either
authorized but theretofore unissued shares of Common Stock,
Common Stock held in treasury or shares of Common Stock
reacquired by PAMECO, or may be purchased in the public market,
from a market maker, or by other negotiated transactions,
including purchases from Participants who are receiving Common
Stock pursuant to the exercise of Options or from persons who are
-5-<PAGE>
entitled to receive or who have received Common Stock from any
benefit program maintained by PAMECO upon retirement, other
termination of employment or any other event. Such purchases may
be subject to such terms with respect to price, delivery and
other terms and conditions as to which PAMECO may agree. PAMECO
may appoint an independent agent to purchase the Common Stock,
with the independent agent determining the amount of such
purchases, the price to be paid and the broker or dealer, if any,
through or from whom the purchases are to be made. For the
purpose of making purchases, PAMECO may commingle each
Participant's funds with those of all other Participants. The
manner and timing of the issuance or purchases of Common Stock
hereunder shall be in accordance with all applicable federal
securities laws.
6. DISTRIBUTION OF STOCK CERTIFICATES
Until distribution is requested by a Participant, stock
certificates evidencing Participants' shares of Common Stock
acquired upon the exercise of an Option shall be held by PAMECO
or its designee as the nominee for such Participants.
Certificates shall be held by PAMECO or its designee as nominee
for Participants solely as a matter of convenience. The
Participant shall have all ownership rights to such shares, and
PAMECO shall have no ownership or other rights of any kind with
respect to any such certificates or the shares represented
thereby. A Participant may withdraw certificates for his or her
shares of Common Stock credited to his or her account at any time
by a written request for such withdrawal delivered to the
Administrator or its designee, and upon any such request, PAMECO
will promptly distribute such certificates to the requesting
Participant. Distributions of stock certificates will be made
promptly after the death, disability, retirement or other
termination of employment of a Participant or discontinuance by a
Participant of payroll deductions hereunder. In the event of a
Participant's death, such stock certificates will be distributed
to the Participant's beneficiary most recently designated by such
Participant on a form prescribed by the Administrator or its
designee. If such Participant makes no such designation, or if
all of the designated beneficiaries predecease such Participant,
distribution will be made to such Participant's estate.
7. SECURITIES REGULATION
PAMECO shall not be required to issue any certificate
or certificates for shares of Common Stock hereunder prior to (i)
obtaining any approval from any governmental agency which PAMECO
shall, in its discretion, determine to be necessary or advisable,
(ii) the admission of such shares to listing on any national
securities exchange or Nasdaq on which the shares of Common Stock
may be listed and (iii) the completion of any registration or
other qualification of such shares under any state or federal law
or ruling or regulations of any governmental body which PAMECO
shall, in its sole discretion, determine to be necessary or
advisable.
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8. AMENDMENT
The Plan may, from time to time, be amended or modified
by the Board in such respects as it shall deem advisable,
including, without limitation, amendments to ensure that the
Options qualify under Section 423 of the Code, or amendments to
conform to any change in any law or regulation governing same;
provided, however, that no such amendment or modification shall
(i) disqualify the Plan under Section 423 of the Code, (ii)
increase the aggregate number of shares of Common Stock which may
be purchased or issued pursuant to the exercise of Options (other
than an increase merely reflecting a change in capitalization
such as a stock dividend or stock split-up) or (iii) change the
designation of corporations whose employees may be offered
Options. Any amendment which would have the effect of (ii) or
(iii) above must be approved by PAMECO's shareholders in
accordance with Section 423 of the Code and any securities law
requirements.
9. TERMINATION OF PLAN
The Plan shall continue until the first to occur of (i)
the maximum aggregate number of shares of Common Stock available
hereunder, as set forth in Section 5(a) hereof, has been acquired
pursuant to the exercise of Options or (ii) termination of the
Plan by the Board. The Board may, at any time in its absolute
discretion, terminate the Plan and, unless disallowed by
applicable law, terminate any then outstanding Options so that
such terminated Options may not be exercised after the effective
date of such termination.
10. EFFECT OF PLAN
The provisions of the Plan shall, in accordance with
its terms, be binding upon, and inure to the benefit of, all
successors of each employee participating in the Plan, including,
without limitation, such employee's estate and the executors,
administrators or trustees thereof, heirs and legatees, and any
receiver, trustee in bankruptcy or representative of creditors of
such employee.
11. GOVERNING LAW
All matters related to the Plan shall be governed by
the laws of the State of Georgia, without regard to its
principles of conflicts of law.
-7-
Exhibit 5 Attorneys at Law
Suite 2800
KILPATRICK STOCKTON LLP 1100 Peachtree Street
Atlanta, Georgia 30309-4530
Telephone: 404.815.6500
Facsimile: 404.815.6555
January 7, 1998
Pameco Corporation
1000 Center Place
Norcross, Georgia 30093
Re: Form S-8 Registration Statement
Gentlemen:
We have acted as counsel for Pameco Corporation, a Georgia
corporation (the "Company"), in the preparation of the Form S-8
Registration Statement relating to the Company's 1997 Employee
Stock Purchase Plan and the proposed offer and sale of up to
500,000 shares of the Company's Class A Common Stock, par value
$.01 per share (the "Common Stock"), pursuant thereto.
In such capacity, we have examined certificates of public
officials and originals or copies of such corporate records,
documents, and other instruments relating to the authorization of
the Plan and the authorization and issuance of the shares of
Common Stock pursuant to options granted thereunder as we have
deemed relevant under the circumstances.
Based on and subject to the foregoing, it is our opinion
that the Plan and the proposed offer and sale thereunder of up to
500,000 shares of Common Stock have been duly authorized by the
Board of Directors of the Company, and that the shares, when
issued in accordance with the terms and conditions of the Plan,
will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an
exhibit to said Registration Statement.
Sincerely,
KILPATRICK STOCKTON LLP
By: /s/ James Steinberg
James Steinberg, a partner
Exhibit 23
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption
Experts in the Registration Statement (Form S-8) pertaining to
the Pameco Corporation 1997 Employee Stock Purchase Plan, and to
the incorporation by reference therein of our reports dated April
2, 1997, except for Note 10 as to which the date is June 3, 1997,
with respect to the consolidated financial statements and
schedule of Pameco Corporation, included in its Registration
Statement and Prospectus on Form S-1 (File No. 333-24043) filed
with the Securities and Exchange Commission.
January 7, 1998 /s/ Ernst & Young LLP
Atlanta, Georgia Ernst & Young LLP
