As filed with the Securities and Exchange Commission on September 6 1996
Registration No. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
--------------------
AMERICAN PACIFIC CORPORATION
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 59-6490478
(State or other jurisdiction of incorporation (I.R.S. Employer
or organization) Identification No.)
3770 HOWARD HUGHES PARKWAY, 89109
SUITE 300 (Zip Code)
LAS VEGAS, NEVADA
(Address of principal executive offices)
1994 DIRECTORS' STOCK OPTION PLAN
(Full Title of the Plan)
C. KEITH ROOKER
EXECUTIVE VICE PRESIDENT
AMERICAN PACIFIC CORPORATION
3770 HOWARD HUGHES PARKWAY, SUITE 300
LAS VEGAS, NEVADA 89109
(Name and Address of Agent for Service)
(702) 735-2200
(Telephone number, including area code, of agent for service)
---------------
WITH A COPY TO:
VICTOR M. ROSENZWEIG, ESQ.
OLSHAN GRUNDMAN FROME & ROSENZWEIG LLP
505 PARK AVENUE
NEW YORK, NEW YORK 10022
(212) 753-7200
---------------
Approximate date of proposed sales pursuant to the
plan: FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS
REGISTRATION STATEMENT.
---------------
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered(1) registered per share price fee
- --------------------------------------------------------------------------------
Common Stock,
$.10 par value 35,000 shares(2)(3) $7.50(3) $212,500 $90.52
-------------------------------------------------------------
5,000 shares(2)(3) $6.00(3) $ 30,000 $10.34
- --------------------------------------------------------------------------------
Total......... $100.86
================================================================================
(1) The contents of the Company's previously filed Form S-8s, (Registration Nos.
33-21565, 33-30321, 33-36887, and 33-52898) are incorporated herein by
reference.
<PAGE>
(2) There are also registered hereby such indeterminate number of shares of
Common Stock as may become issuable by reason of the operation of the
anti-dilution provisions of the 1994 Directors' Stock Option Plan (the
"Directors' Plan") of the Company.
(3) Includes 35,000 shares with respect to which options were granted under the
Directors' Plan at an exercise price of $7.50. An additional 5,000 shares may be
offered under the Directors' Plan at market price at the date of grant. Pursuant
to Rules 457(g) and (h), the offering price for such 5,000 shares is estimated
solely for the purpose of determining the registration fee and is based on the
average of the high and low prices of the Company's Common Stock ($6.00) as
reported by the Nasdaq National Market on September 3, 1996.
================================================================================
-2-
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED SEPTEMBER 6, 1996
PROSPECTUS
118,000 SHARES
AMERICAN PACIFIC CORPORATION
Common Stock, $.10 par value
This Prospectus relates to the reoffer and resale by certain selling
shareholders (the "Selling Shareholders") who may be deemed affiliates (as
defined in Rule 405 of the Securities Act of 1933, as amended) of shares (the
"Shares") of Common Stock, $.10 par value (the "Common Stock") of American
Pacific Corporation (the "Company") that may be issued by the Company to the
Selling Shareholders upon the exercise of outstanding stock options granted
pursuant to (i) the Company's Incentive Stock Option Plan For Key Employees -
1982 (the "1982 Plan") (ii) the Company's 1988 Non-Qualified Stock Option Plan,
(the "1988 Non-Qualified Plan"), (iii) the Company's 1988 Incentive Stock Option
Plan (the "1988 Incentive Plan") and (iv) the Company's 1991 Non-Qualified Stock
Option Plan (the "1991 Plan"). With respect to the Shares that may be issued to
the Selling Shareholders or additional affiliates under the 1991 Plan, this
Prospectus also relates to certain Shares underlying options which have not as
of this date been granted. If and when such options are granted, the Company
intends to distribute a Prospectus Supplement as required by the Act. Such
Prospectus Supplement will specify the names of the future Selling Shareholders
and the amount of shares to be reoffered and sold by them.
The offer and sale of the Shares to the Selling Shareholders have been
previously registered under the Act. The Shares are being reoffered and may be
resold for the account of the Selling Shareholders and the Company will not
receive any of the proceeds from the resale of the Shares.
The Selling Shareholders have advised the Company that the resale of
their Shares may be effected from time to time in one or more transactions on
the NASDAQ National Market ("NASDAQ"), in negotiated transactions or otherwise
at market prices prevailing at the time of the sale or at prices otherwise
negotiated. See "Plan of Distribution." The Company will bear all expenses in
connection with the preparation of this Prospectus.
SEE "RISK FACTORS" ON PAGE 4 HEREOF FOR A DISCUSSION OF CERTAIN FACTORS
THAT SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF THE COMMON STOCK OFFERED
HEREBY.
The Common Stock of the Company is traded on NASDAQ under the symbol
"APFC". On September 3, 1996, the closing price for the Common Stock, as
reported by NASDAQ, was $6.00.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED
BY THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
The date of this Prospectus is September __, 1996.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549; Suite 1400, 500 West Madison Street,
Chicago, Illinois 60661; and Seven World Trade Center, 13th Floor, New York, New
York 10048. Copies of such material can be obtained from the Public Reference
Section of the Commission at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates.
TABLE OF CONTENTS
AVAILABLE INFORMATION............................................2
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE..................3
RISK FACTORS.....................................................4
GENERAL INFORMATION..............................................5
USE OF PROCEEDS..................................................6
SELLING SHAREHOLDERS.............................................6
PLAN OF DISTRIBUTION.............................................7
LEGAL MATTERS....................................................7
EXPERTS..........................................................8
ADDITIONAL INFORMATION...........................................8
-2-
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1995 and its Quarterly Reports on Form 10-Q for the quarters ended
December 31, 1995, March 31, 1996 and June 30, 1996 are incorporated by
reference in this Prospectus and shall be deemed to be a part hereof. All
documents subsequently filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act, prior to the termination of this offering, are
deemed to be incorporated by reference in this Prospectus and shall be deemed to
be a part hereof from the date of filing of such documents.
The Company's Application for Registration of its Common Stock under
Section 12(g) of the Exchange Act filed on December 28, 1992, is incorporated by
reference in this Prospectus and shall be deemed to be a part hereof.
The Company hereby undertakes to provide without charge to each person
to whom a copy of this Prospectus has been delivered, on the written or oral
request of any such person, a copy of any or all of the documents referred to
above which have been or may be incorporated in this Prospectus by reference,
other than exhibits to such documents. Written requests for such copies should
be directed to American Pacific Corporation, 3770 Howard Hughes Parkway, Suite
300, Las Vegas, Nevada 89109, Attention: C. Keith Rooker, Executive Vice
President. Oral requests should be directed to such officer (telephone number
(702) 735-2200).
----------
No dealer, salesman or other person has been authorized to give any
information or to make any representations other than those contained in this
Prospectus in connection with the offer made hereby, and, if given or made, such
information or representations must not be relied upon as having been authorized
by the Company or any Selling Shareholder. This Prospectus does not constitute
an offer to sell, or a solicitation of an offer to buy, the securities offered
hereby to any person in any state or other jurisdiction in which such offer or
solicitation is unlawful. The delivery of this Prospectus at any time does not
imply that information contained herein is correct as of any time subsequent to
the date of this Prospectus.
-3-
<PAGE>
RISK FACTORS
Certain matters discussed in this Prospectus may be forward- looking
statements that are subject to risks and uncertainties that could cause actual
results to differ materially from those projected. Such risks and uncertainties
include, but are not limited to, the risk factors set forth below. The following
important risk factors, among others, may cause the Company's operating results
and/or financial position to be adversely affected from time to time:
1. Declining demand or downward pricing pressure for the Company's
products as a result of general or specific economic conditions, governmental
budget decreases affecting the Department of Defense or NASA which would cause a
continued decrease in demand for AP, technological advances and improvements or
new competitive products causing a reduction or elimination of demand for AP,
sodium azide or Halotron, the ability and desire of purchasers to substitute
other products for the Company's products based upon perceived quality and
pricing, and the fact that perchlorate chemicals, sodium azide, Halotron and the
Company's environmental products have limited applications and highly
concentrated customer bases.
2. Competitive factors including, but not limited to, the Company's
limitations respecting financial resources and its ability to compete against
companies with substantially greater resources, significant excess market supply
in the AP and sodium azide markets and the development or penetration of
competing new products, particularly in the propulsion, airbag inflation and
fire suppression businesses.
3. Underutilization of the Company's manufacturing facilities resulting
in production inefficiencies and increased costs, the inability to recover
facility costs and reductions in margins.
4. Difficulties in procuring raw materials, supplies, power and natural
gas used in the production of perchlorates, sodium azide or Halotron products or
used in the engineering and assembly process for environmental protection
equipment products.
5. The Company's ability to control the amount of operating expenses
and/or the impact of any non-recurring or unusual items resulting from the
Company's continuing evaluation of its strategies, plans, organizational
structure and asset valuations.
6. Risks associated with the Company's real estate activities,
including, but not limited to, dependence upon the Las Vegas commercial,
industrial and residential real estate markets, changes in general or specific
economic conditions,
-4-
<PAGE>
interest rate fluctuations affecting the availability and the cost of financing,
the performance of the managing partner of the Gibson Ranch L.L.P. (Ventana
Canyon Joint Venture) and regulatory and environmental matters that may have a
negative impact on
sales.
7. The effects of, and changes in, trade, monetary and fiscal policies,
laws and regulations and other activities of governments, agencies or similar
organizations, including, but not limited to, environmental, safety and
transportation issues.
8. The cost and effects of legal and administrative proceedings,
settlements and investigations, particularly those described in the "Commitments
and Contingencies" note to the Company's financial statements contained in its
most current periodic SEC report, and claims made by or against the Company
relative to patents or property rights.
9. The adoption of new, or changes in existing, accounting policies and
practices.
GENERAL INFORMATION
The Company, through its indirect subsidiary Western Electrochemical
Company ("WECCO"), is engaged in the production of specialty chemical, ammonium
perchlorate ("AP"), for the aerospace and national defense industries. The
Company is one of two domestic manufacturers of AP, which is used primarily as
an oxidizing agent in composite solid propellants for rockets, booster motors
and missiles. The Company's customers for AP are primarily contractors in
programs of the National Aeronautics and Space Administration ("NASA") and the
Department of Defense ("DDD"), and companies providing commercial satellite
launch services. These NASA and DDD contractors are engaged in space exploration
projects such as the Space Shuttle Program and in the production of defense
systems. Other customers for the Company's AP include aerospace and defense
agencies of foreign countries.
In May 1994, the Company and its principal customer, Thiokol
Corporation ("Thiokol"), executed an amendment (the "Amendment") to the 1989
Advance Agreement. The 1989 Advance Agreement represents one of certain
agreements related to the sale of AP. The Company and Thiokol previously had a
dispute over the interpretation of these agreements. See Legal Proceedings. As a
result of a significant change in the demand for AP, during the fiscal year
ended September 30, 1994, the Company recognized an impairment charge of
$39,401,000 related to WECCO's fixed assets.
The Company is a party to agreements with Dynamit Nobel A.G., of
Germany ("Dynamit Nobel") relating to the production and sale of sodium azide,
the principal component of the gas generant used in automotive airbag systems.
Dynamit Nobel licensed to the
-5-
<PAGE>
Company, on an exclusive basis for the North American market, its technology and
know-how in the production of sodium azide, and has provided the technical
support for the design, construction and start-up of the Company's sodium azide
facility. Funding for the facility was partially provided by means of the sale
of $40,000,000 principal amount of noncallable subordinated secured notes (the
"Azide Notes") to a major state public employee retirement fund and a leading
investment management company. The Company commenced commercial sales of sodium
azide in fiscal 1994.
In February 1992, the Company acquired (by exercise of an option
previously granted to it) the worldwide rights of Halotron, a fire suppression
system that includes chemical compounds and application technology intended to
replace halons, which have been found to be ozone layer-depleting chemicals.
Halotron has applications as a fire suppression agent for military, commercial
and industrial uses. The Company has completed the construction of a plant for
the production of certain Halotron products. The Company expects to become a
qualified supplier for military, commercial and industrial applications for
Halotron products, although there can be no assurance in that regard. As of the
date hereof, the Company's sales of Halotron products have not been significant.
The Company is also engaged in the development of real estate and in
the production of environmental protection and waste water treatment equipment.
The Company's principal executive offices are located at 3770 Howard
Hughes Parkway, Suite 300, Las Vegas, Nevada 89109. The Company's telephone
number at such location is (702) 735- 2200.
USE OF PROCEEDS
The Shares offered hereby were or will be purchased by the Selling
Shareholders upon exercise of options granted to them and will be sold for the
account of the Selling Shareholders. The Company will receive the exercise price
of the options when exercised by the holders thereof. Such proceeds will be used
for working capital purposes by the Company. The Company will not receive any of
the proceeds from the reoffer and resale of the Shares by the Selling
Shareholders.
SELLING SHAREHOLDERS
This Prospectus relates to the reoffer and resale of Shares issued or
that may be issued under the 1982 Plan, the 1988 Non-Qualified Plan, the 1988
Incentive Plan and the 1991 Plan to those Selling Shareholders who are deemed to
be affiliates.
-6-
<PAGE>
The following table sets forth (i) the number of shares of Common Stock
beneficially owned by each Selling Shareholder at August 1, 1996, (ii) the
number of Shares of Common Stock to be offered for resale by each Selling
Shareholder and (iii) the number and percentage of shares of Common Stock to be
held by each Selling Shareholder after completion of the offering.
<TABLE>
<CAPTION>
Number of shares of
Common Stock/
Number of Percentage of Class to
Number of shares of Shares to be be Owned After
Common Stock Owned at Offered for Completion of the
Name August 1, 1996 (1) Resale Offering
- ---------------------------------------- ------------------------ ----------------- ------------------------
<S> <C> <C> <C>
Fred D. Gibson Jr.(2)................... 442,812 35,000 397,812/4.8%
C. Keith Rooker(3)...................... 114,371 68,000 46,371/*
John R. Gibson(4)....................... 41,382 15,000 26,382/*
</TABLE>
- ----------
* less than one percent
(1) Includes shares issuable upon the exercise of options, which options
are exercisable within 60 days after August 1, 1996.
(2) Fred D. Gibson has been a Director of the Company since 1982 and became
Chairman of the Board of Directors and President and Chief Executive
Officer of the Company in 1985.
(3) C. Keith Rooker has been a Director of the Company since 1988. Mr.
Rooker has been Executive Vice President of the Company since 1988.
(4) John R. Gibson has been a Director of the Company since 1988. Mr.
Gibson has been the Company's Vice President -- Engineering &
Operations since March 1992.
PLAN OF DISTRIBUTION
It is anticipated that all of the Shares will be offered by the Selling
Shareholders from time to time in the open market, either directly or through
brokers or agents, or in privately negotiated transactions. The Selling
Shareholders have advised the Company that they are not parties to any
agreement, arrangement or understanding as to such sales.
LEGAL MATTERS
Certain legal matters in connection with the issuance of the Shares
offered hereby have been passed upon for the Company by Messrs. Olshan Grundman
Frome & Rosenzweig LLP, New York, New York 10022. Victor M. Rosenzweig, a member
of Olshan Grundman Frome & Rosenzweig LLP, is a Director of the Company and
holds 1,400 shares of Common Stock and options to purchase 5,000 shares of
Common Stock. The shares underlying all of the options held by Mr. Rosenzweig
are being registered concurrently with this Prospectus.
-7-
<PAGE>
EXPERTS
The consolidated financial statements incorporated in this registration
statement by reference from the Company's Annual Report on Form 10-K for the
year ended September 30, 1995 have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their report, which is incorporated herein by
reference, and have been so incorporated in reliance upon the report of such
firm given upon their authority as experts in accounting and auditing.
ADDITIONAL INFORMATION
The Company has filed with the Securities and Exchange Commission a
Registration Statement on Form S-8 under the Securities Act with respect to the
Shares offered hereby. For further information with respect to the Company and
the securities offered hereby, reference is made to the Registration Statement.
Statements contained in this Prospectus as to the contents of any contract or
other document are not necessarily complete, and in each instance, reference is
made to the copy of such contract or document filed as an exhibit to the
Registration Statement, such statement being qualified in all respects by such
reference.
-8-
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference and made a
part hereof:
(a) American Pacific Corporation's (the "Company") Annual
Report on Form 10-K for the fiscal year ended September 30, 1995.
(b) The Company's Quarterly Reports on Form 10-Q for the
fiscal quarters ended December 31, 1995, March 31, 1996 and June 30,
1996.
(c) The description of the Company's securities contained in
the Company's Registration Statement on Form 8- A filed December 28,
1992.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13, 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, prior to the filing of a post-effective amendment which indicates that
all securities offered hereby have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated by reference herein and to
be a part hereof from the date of the filing of such reports and documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Certain legal matters in connection with the issuance of the Shares
offered hereby have been passed upon for the Company by Messrs. Olshan Grundman
Frome & Rosenzweig LLP, New York, New York 10022. Victor M. Rosenzweig, a member
of such firm, is a Director of the Company and holds 1,400 shares of Common
Stock and options to purchase 5,000 shares of Common Stock. The shares
underlying all of the options held by Mr. Rosenzweig are being registered
concurrently with this Prospectus.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS
The certificate of incorporation and by-laws of the Company provide
that the Company shall indemnify to the extent permitted by Delaware law, any
person whom it may indemnify thereunder,
-9-
<PAGE>
including directors, officers, employees and agents of the Company. The
pertinent section of Delaware law is set forth below in full. Such
indemnification (other than as ordered by a court) shall be made by the Company
only upon a determination that indemnification is proper in the circumstances
because the individual met the applicable standard of conduct. Advances for such
indemnification may be made pending such determination. Such determination shall
be made by a majority vote of a quorum consisting of disinterested directors, or
by independent legal counsel or by the stockholders. In addition, the Company
has amended its certificate of incorporation to eliminate, to the extent
permitted by Delaware law, personal liability of directors to the Company and
its stockholders for monetary damages for breach of fiduciary duty as directors.
The Company also maintains a directors and officers insurance and
company reimbursement policy. The policy insures directors and officers against
unindemnified loss arising from certain wrongful acts in their capacities and
reimburses the Company for such loss for which the Company has lawfully
indemnified the directors and officers. The policy contains various exclusions,
no one of which relates to the offering hereunder.
Section 145 of the Delaware General Corporation Law provides as
follows:
(a) A corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than action by or in the right
of the corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if
he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action
or
-10-
<PAGE>
proceeding, had reasonable cause to believe that his conduct was
unlawful.
(b) A corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he is or was
a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable to the corporation unless
and only to the extent that the Court of Chancery or 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 the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or
such other court shall deem proper.
(c) To the extent that a director, officer, employee or agent
of a corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in subsections
(a) and (b) of this section, or in defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
(d) Any indemnification under subsections (a) and (b) of this
section (unless ordered by a court) shall be made by the corporation
only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper
in the circumstances because he has met the applicable standard of
conduct set forth in subsections (a) and (b) of this section. Such
determination shall be made (1) by the board of directors by a majority
vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (2) if such a quorum is not obtainable,
or, even if obtainable a quorum of disinterested directors so directs,
by independent legal counsel in a written opinion, or (3) by the
stockholders.
-11-
<PAGE>
(e) Expenses incurred by an officer or director in defending a
civil or criminal action, suit or proceeding may be paid by the
corporation in advance of the final disposition or such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the corporation
as authorized in this section. Such expenses incurred by other
employees and agents may be paid upon such terms and conditions, if
any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other subsections of this section shall
not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any
bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office.
(g) A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him and incurred by
him in any such capacity, or arising out of his status as such, whether
or not the corporation would have the power to indemnify him against
such liability under this section.
(h) For purposes of this section, references to "the
corporation" shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had the power and
authority to indemnify its directors, officers, and employees or
agents, so that any person who is or was a director, officer, employee
or agent of such constituent corporation, or is or was serving at the
request of such constituent corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under this
section with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
(i) For purposes of this section, references to "other
enterprises" shall include employee benefit plans; references to
"fines" shall include any such excise taxes
-12-
<PAGE>
assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the corporation" shall include
any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to any employee
benefit plan, its participants or beneficiaries; and a person who acted
in good faith and in a manner reasonably believed to be in the interest
of the participants and beneficiaries of any employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best
interests of the corporation" as referred to in this section.
(j) The indemnification and advancement of expenses provided
by, or granted pursuant to, this section shall, unless otherwise
provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a
person.
The Company has purchased director and officer liability insurance for
its directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
4(a) - 1994 Directors' Stock Option Plan (the "Directors'
Plan").
4(b) - Form of Option Agreement for the Directors' Plan.
5 - Opinion of Olshan Grundman Frome & Rosenzweig LLP.
23(a) - Consent of Deloitte & Touche LLP, independent
auditors.
23(b) - Consent of Olshan Grundman Frome & Rosenzweig LLP
(included in its opinion filed as Exhibit 5).
24 - Powers of Attorney (included on page 12).
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:
-13-
<PAGE>
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the Registration Statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the Registration
Statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the Registration
Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (i) and (ii) above
do not apply if the information required to be
included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by
the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated
by reference in the Registration Statement;
(2) That, for the purposes 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 that 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
of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or 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 therein, and the offering of such securities at
-14-
<PAGE>
that time shall be deemed to be the initial bona fide offering
thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the 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 of 1933 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 a
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 of
1933 and will be governed by the final adjudication of such
issue.
-15-
<PAGE>
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
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Las Vegas, State of Nevada, on this 31st day of July,
1996.
AMERICAN PACIFIC CORPORATION
(Registrant)
By: /S/ FRED D. GIBSON, JR.
-----------------------------------------------------
Fred D. Gibson, Jr., Chairman of the Board, President
and Chief Executive Officer
POWER OF ATTORNEYS AND SIGNATORIES
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated. Each of the undersigned officers and
directors of American Pacific Corporation hereby constitutes and appoints C.
Keith Rooker and David N. Keys and each of them singly, as true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution,
for him in his name in any and all capacities, to sign any and all amendments
(including post-effective 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 and to prepare any and
all exhibits thereto, and other documents in connection therewith, and to make
any applicable state securities law or blue sky filings, granting unto said
attorneys-in-fact and agents, full power and authority to do and perform each
and every act and thing requisite or necessary to be done to enable American
Pacific Corporation to comply with the provisions of the Securities Act of 1933,
as amended, and all requirements of the Securities and Exchange Commission, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
SIGNATURE TITLE DATE
--------- ----- ----
President (Principal
/S/ FRED D. GIBSON, JR. Executive Officer) and
- --------------------------------- Director July 31, 1996
(Fred D. Gibson, Jr.)
/S/ JOHN R. GIBSON Executive Vice President July 31, 1996
- --------------------------------- and Director
(John R. Gibson)
/S/ C. KEITH ROOKER Director July 31, 1996
- ---------------------------------
(C. Keith Rooker)
Vice President, Chief
Financial Officer and
/S/ DAVID N. KEYS Treasurer (Principal
- --------------------------------- Financial Officer) July 31, 1996
(David N. Keys)
/S/ THOMAS A. TURNER Director July 31, 1996
- ---------------------------------
(Thomas A. Turner)
/S/ NORVAL F. POHL Director July 31, 1996
- ---------------------------------
(Norval F. Pohl)
/S/ BERLYN D. MILLER Director July 31, 1996
- ---------------------------------
(Berlyn D. Miller)
/S/ THOMAS L. WAR Director July 31, 1996
- ---------------------------------
(Thomas L. War)
/S/ CHARLES H. FELTZ Director July 31, 1996
- ---------------------------------
(Charles H. Feltz)
/S/ JANE L. WILLIAMS Director July 31, 1996
- ---------------------------------
(Jane L. Williams)
/S/ VICTOR M. ROSENZWEIG Director July 31, 1996
- ---------------------------------
(Victor M. Rosenzweig)
-16-
AMERICAN PACIFIC CORPORATION
1994 DIRECTORS' STOCK OPTION PLAN
ARTICLE I
PURPOSE
The purpose of the American Pacific Corporation 1994
Directors' Stock Option Plan (the "Plan") is to secure for American Pacific
Corporation and its stockholders the benefits arising from stock ownership by
its Directors. The Plan will provide a means whereby such Directors may purchase
shares of the common stock, $.10 par value, of American Pacific Corporation
pursuant to options granted in accordance with the Plan.
ARTICLE II
DEFINITIONS
The following capitalized terms used in the Plan shall have
the respective meanings set forth in this Article:
2.1 "Committee" shall mean the Stock Option Committee of the
Board of Directors of the Corporation, American Pacific Corporation, which shall
consist of at least three Eligible Directors (as defined below) of the Board of
Directors of the Corporation.
2.2 "Chairman" shall mean the duly appointed Chairman of any
standing committee of the Board.
2.3 "Company" shall mean American Pacific Corporation and any
of its subsidiaries.
2.4 "Director" shall mean any person who is a member of the
Board of Directors of the Company.
2.5 "Eligible Director" shall be any Director who is not a
full or part-time Employee of the Company.
2.6 "Exercise Price" shall mean the price per Share at which
an Option may be exercised.
2.7 "Fair Market Value" shall mean the closing price of
publicly traded Shares on the national securities exchange on which Shares are
listed (if the Shares are so listed) or on the Nasdaq Stock Market System (if
the Shares are regularly quoted on the Nasdaq Stock Market System), or, if not
so listed or regularly quoted, the mean between the closing bid and asked prices
of publicly traded Shares in the over-the-counter market
<PAGE>
Electronic Bulletin Board, or, if such bid and asked prices shall not be
available, as reported by any nationally recognized quotation service selected
by the Company.
2.8 "Grant Date" shall mean the later of (i) the date such
Eligible Director is first elected as a member of the Board or (2) December 12,
1994.
2.9 "Option" shall mean an Option to purchase Shares granted
pursuant to the Plan.
2.10 "Option Agreement" shall mean the written agreement
described in Article VI herein.
2.11 "Permanent Disability" shall mean the condition of an
Eligible Director who is unable to participate as a member of the Board by
reason of any medically determined physical or mental impairment which can be
expected to result in death or which can be expected to last for a continuous
period of not less than twelve (12) months.
2.12 "Purchase Price" shall be the Exercise Price multiplied
by the number of whole Shares with respect to which an Option may be exercised.
2.13 "Shares" shall mean shares of common stock, $.10 par
value, of the Company.
ARTICLE III
ADMINISTRATION
3.1 GENERAL. This Plan shall be administered by the Committee
in accordance with the express provisions of this Plan.
3.2 POWERS OF THE COMMITTEE. The Committee shall have full and
complete authority to adopt such rules and regulations and to make all such
other determinations not inconsistent with the Plan as may be necessary for the
administration of the Plan.
ARTICLE IV
SHARES SUBJECT TO PLAN
Subject to adjustment in accordance with Article IX an
aggregate of 40,000 Shares are reserved for issuance under this Plan. Shares
sold under this Plan may be either authorized but unissued Shares or reacquired
Shares. If an Option or any portion thereof, shall expire or terminate for any
reason without having been exercised in full, the unpurchased Shares covered by
such Option shall be available for future grants of Options.
-2-
<PAGE>
ARTICLE V
GRANTS
5.1 GRANT. On the Grant Date, each Eligible Director shall
receive the grant of an option to purchase 5,000 Shares, of which 2,500 shall
vest and become exercisable immediately and 2,500 shall vest 12 months after the
Grant Date.
5.2 COMPLIANCE WITH RULE 16B-3(C)(2)(II). The terms for the
grant of Options to an Eligible Director may only be changed if permitted under
Rule 16b-3(c)(2)(ii) of the Securities Exchange Act of 1934, as amended, and
accordingly the formula for the grant of Options may not be changed or otherwise
modified more than once in any six month period, other than to comport with
changes in the Internal Revenue Code, the Employee Retirement Income Security
Act, or the rules thereunder.
ARTICLE VI
TERMS OF OPTION
Each Option shall be evidenced by a written Option Agreement
executed by the Company and the Eligible Director which shall specify the Grant
Date, the number of Shares subject to the Option, the Exercise Price and shall
also include or incorporate by reference the substance of all of the following
provisions and such other provisions consistent with this Plan as the Board may
determine.
6.1 TERM. The term of the Option shall be five (5) years from
the date an Option first become exercisable in accordance with Section 6.2
herein, subject to earlier termination in accordance with Articles VI and X.
6.2 RESTRICTION ON EXERCISE. Options shall be exercisable at
such time or times and subject to such terms and conditions as shall be
determined by the Board at grant, provided, however, that except in the case of
the Eligible Director's death or Permanent Disability, upon which events the
Option will become immediately exercisable, unless a longer vesting period is
otherwise determined by the Board at grant, Options shall be exercisable as
follows: one-half of the aggregate Shares purchasable under an Option shall be
immediately exercisable on the Grant Date, and the balance of the Shares
purchasable under an Option shall be exercisable commencing one year after the
Grant Date.
6.3 EXERCISE PRICE. The Exercise Price for each Share subject
to an Option shall be the Fair Market Value of the Share as determined in
Section 2.7 herein.
-3-
<PAGE>
6.4 MANNER OF EXERCISE. An Option shall be exercised in
accordance with its terms, by delivery of a written notice of exercise to the
Company and payment of the full purchase price of the Shares being purchased. An
Eligible Director may exercise an Option with respect to all or less than all of
the Shares for which the Option may then be exercised, but an Eligible Director
must exercise the Option in full Shares.
6.5 PAYMENT. The Purchase Price of Shares purchased pursuant
to an Option or portion thereof, may be paid in United States Dollars, in cash
or by check, bank draft or money order payable to the Company.
6.6 TRANSFERABILITY. No Option shall be transferable otherwise
than by will or the laws of descent and distribution, and an Option shall be
exercisable during the Eligible Director's lifetime only by the Eligible
Director, his guardian or legal representative.
6.7 TERMINATION OF MEMBERSHIP ON THE BOARD. If an Eligible
Director's membership on the Board terminates for any reason, an Option vested
on the date of termination may be exercised in whole or in part at any time
within two (2) years after the date of such termination (but in no event after
the term of the Option expires) and shall thereafter terminate.
ARTICLE VII
GOVERNMENT AND OTHER REGULATIONS
7.1 DELIVERY OF SHARES. The obligation of the Company to issue
or transfer and deliver Shares for exercised Options under the Plan shall be
subject to all applicable laws, regulations, rules, orders and approvals which
shall then be in effect.
7.2 HOLDING OF STOCK AFTER EXERCISE OF OPTION. The Option
Agreement shall provide that the Eligible Director, by accepting such Option,
represents and agrees, for the Eligible Director and his permitted transferees
hereunder that none of the Shares purchased upon exercise of the Option shall be
acquired with a view to any sale, transfer or distribution of the Shares in
violation of the Securities Act of 1933, as amended (the "Act") and the person
exercising an Option shall furnish evidence satisfactory to that Company to that
effect, including an indemnification of the Company in the event of any
violation of the Act by such person. Notwithstanding the foregoing, the Company
in its sole discretion may register under the Act the Shares issuable upon
exercise of the Options under the Plan.
-4-
<PAGE>
ARTICLE VIII
WITHHOLDING TAX
The Company may in its discretion, require an Eligible
Director to pay to the Company, at the time of exercise of an Option an amount
that the Company deems necessary to satisfy its obligations to withhold federal,
state or local income or other taxes (which for purposes of this Article
includes an Eligible Director's FICA obligation) incurred by reason of such
exercise. When the exercise of an Option does not give rise to the obligation to
withhold federal income taxes on the date of exercise, the Company may, in its
discretion, require an Eligible Director to place Shares purchased under the
Option in escrow for the benefit of the Company until such time as federal
income tax withholding is required on amounts included in the Eligible
Director's gross income as a result of the exercise of an Option. At such time,
the Company, in its discretion, may require an Eligible Director to pay to the
Company an amount that the Company deems necessary to satisfy its obligation to
withhold federal, state or local taxes incurred by reason of the exercise of the
Option, in which case the Shares will be released from escrow upon such payment
by an Eligible Director.
ARTICLE IX
ADJUSTMENTS
9.1 PROPORTIONATE ADJUSTMENTS. If the outstanding Shares are
increased, decreased, changed into or exchanged into a different number or kind
of Shares or securities of the Company through reorganization, recapitalization,
reclassification, stock dividend, stock split, reverse stock split or other
similar transaction, an appropriate and proportionate adjustment shall be made
to the maximum number and kind of Shares as to which Options may be granted
under this Plan. A corresponding adjustment changing the number or kind of
Shares allocated to unexercised Options or portions thereof, which shall have
been granted prior to any such change, shall likewise be made. Any such
adjustment in the outstanding Options shall be made without change in the
Purchase Price applicable to the unexercised portion of the Option with a
corresponding adjustment in the Exercise Price of the Shares covered by the
Option. Notwithstanding the foregoing, there shall be no adjustment for the
issuance of Shares on conversion of notes, preferred stock or exercise of
warrants or Shares issued by the Board for such consideration as the Board deems
appropriate.
9.2 DISSOLUTION OR LIQUIDATION. Notwithstanding any other
provision hereof, upon the dissolution or liquidation of the Company, or upon a
reorganization, merger or consolidation of the Company with one or more
corporations as a result of which
-5-
<PAGE>
the Company is not the surviving corporation, or upon a sale of substantially
all of the assets or property or more than 80% of the then outstanding Shares of
the Company to another corporation, the Company shall give to each Eligible
Director at the time of adoption of the plan for liquidation, dissolution,
merger or sale either (1) a reasonable time thereafter within which to exercise
the Option prior to the effective date of such liquidation or dissolution,
merger or sale, or (2) the right to exercise the Option as to an equivalent
number of Shares of stock of the corporation succeeding the Company or acquiring
its business by reason of such liquidation, dissolution, merger, consolidation
or reorganization.
ARTICLE X
AMENDMENT OR TERMINATION OF PLAN
10.1 AMENDMENTS. The Board may at any time amend or revise the
terms of the Plan, provided no such amendment or revision shall, unless approved
by the unanimous vote of the Board of Directors of the Corporation:
(a) increase the maximum number of Shares which may
be sold pursuant to Options granted under the Plan, except as
permitted under the provisions of Article IX;
(b) change the minimum Exercise Price set forth in
Article VI;
(c) increase the maximum term of Options provided for
in Article VI; or
(d) permit the granting of Options to any one other
than as provided in Article V.
10.2 TERMINATION. The Board at any time may suspend or
terminate this Plan. This Plan, unless sooner terminated, shall terminate on the
fifth (5th) anniversary of its adoption by the Board. No Option may be granted
under this Plan while this Plan is suspended or after it is terminated.
10.3 HOLDER OF CONSENT. No amendment, suspension or
termination of the Plan shall, without the consent of the holder of Options,
alter or impair any rights or obligations under any Option theretofore granted
under the Plan.
-6-
<PAGE>
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1 PRIVILEGE OF STOCK OWNERSHIP. No Eligible Director
entitled to exercise any Option granted under the Plan shall have any of the
rights or privileges of a stockholder of the Company with respect to any Shares
issuable upon exercise of an Option until certificates representing the Shares
shall have been issued and delivered.
11.2 PLAN EXPENSES. Any expenses incurred in the
administration of the Plan shall be borne by the Company.
11.3 USE OF PROCEEDS. Payments received from an Eligible
Director upon the exercise of Options shall be used for general corporate
purposes of the Company.
11.4 GOVERNING LAW. The Plan has been adopted under the laws
of the State of Delaware. The Plan and all Options which may be granted
hereunder and all matters related thereto, shall be governed by and construed
and enforceable in accordance with the laws of the State of Delaware as it then
exists.
-7-
STOCK OPTION AGREEMENT
This Stock Option Agreement is made and entered into
effective as of the day of December, 1994, by and between American Pacific
Corporation, a Delaware corporation (the "Company"), and
_____________________________, of __________________, ____________ (the
"Optionee").
RECITALS:
A. The Optionee is serving as a Director of the Company.
The Company desires to encourage the ownership of its Common Stock by the
Optionee, and to provide an incentive for the Optionee to assist in expanding
and improving the growth, profitability and general prosperity of the Company
and of its Subsidiary Corporations, and to stimulate the efforts of the Optionee
by giving suitable recognition, in the form of compensation, to his abilities
and industry, which contribute materially to the growth and profitability of the
Company and of its Subsidiary Corporations.
B. The Company has decided to grant to the Optionee the
option to purchase shares of the Common Stock of the Company.
C. The Company and the Optionee now desire to set forth
the terms and conditions upon which the Optionee shall have the Option to
purchase shares of the Common Stock of the Company, and certain terms and
conditions that will govern the issuance, holding and exercise of such Options,
in accordance with the Company's 1994 Directors' Stock Option Plan as adopted on
December 12, 1994 (the "Plan").
PROVISIONS:
NOW, THEREFORE, in consideration of the mutual covenants
and promises contained herein, the parties to this Option Agreement agree as
follows:
ARTICLE I
DEFINITIONS
As used in this Option Agreement, the following terms
shall have the indicated meanings:
1.01 BOARD OF DIRECTORS. Unless otherwise indicated, the
term Board of Directors shall mean the non-management members of the Board of
Directors of the Company.
<PAGE>
1.02 COMMITTEE shall mean the Stock Option Committee of
the Board of Directors of the Company referred to in Article II of this Option
Agreement.
1.03 COMMON STOCK shall mean the common stock of the
Company, par value ten cents ($0.10) per share.
1.04 COMPANY shall mean American Pacific Corporation, a
Delaware corporation.
1.05 DISABILITY shall mean a physical or mental
condition that, based upon medical reports and other evidence satisfactory to
the Committee, presumably permanently prevents the Optionee from satisfactorily
performing his usual duties for the Company.
1.06 EXERCISE PRICE shall mean the price for which an
Option granted hereunder may be exercised, as provided in Section 3.02 of this
Option Agreement.
1.07 OPTION shall mean the right to purchase shares of
the Common Stock of the Company, granted pursuant to the provisions of this
Option Agreement.
1.08 OPTION AGREEMENT or AGREEMENT shall mean this Stock
Option Agreement.
1.09 OPTIONEE shall mean the Optionee identified above,
to whom this Option has been granted, upon the terms and conditions set forth in
this Option Agreement.
1.10 SUBSIDIARY CORPORATIONS shall mean and include all
corporations that join with the Company in, or would be eligible to join with
the Company in, if timely and proper elections were made, the filing of a
consolidated federal income tax return, under the applicable provisions of the
Internal Revenue Code in effect from time to time.
1.11 VALUE of a share of the Common Stock of the Company
shall mean the closing price of a share of the Company's Common Stock, as
reported on the National Market System of the National Association of Securities
Dealers, Inc. If a reported closing price is not available for the date on which
the Common Stock is sought to be valued, the reported closing price for the next
preceding business day shall be used. If reported closing prices are not
available for either such date, the Value of a share of the Company's Common
Stock shall be the arithmetic mean of the bid and asked prices of the Company's
Common Stock, as published by the National Association of Securities Dealers,
Inc., as of the date on which the Company's Common Stock is sought to be valued,
or if quoted prices are not available as of such day, then the bid and asked
prices as of the next preceding business day shall be used. If the Value cannot
be determined under the preceding rules of this Section 1.11, the Value shall be
the fair market value of the Company's Common Stock, determined under the method
selected by the Committee. Unless modified by the Board of Directors, the
Committee's good-faith determination of the Value of a share of the Company's
Common Stock shall be conclusive, and shall be valid and binding upon all
persons having any interest in any Option granted hereunder.
2
<PAGE>
ARTICLE II
ADMINISTRATION
2.01 COMMITTEE. Subject to the terms of the Plan, the
Option granted pursuant to this Option Agreement shall be administered by the
Stock Option Committee of the Board of Directors of the Company. If for any
reason an Committee is not acting, the Board of Directors shall act as the
Committee. All determinations, decisions, interpretations and other action made
or taken with respect to the Option granted hereunder by the Committee shall be
final and binding upon all persons having any interest in any Option granted
pursuant hereto, unless otherwise determined by the Board of Directors. The
Board of Directors shall have the power by appropriate action to reverse or
modify any action taken by the Committee.
2.02 COMMITTEE TO CONSTRUE AGREEMENT. The Committee
shall administer the Option granted pursuant hereto, and shall have all powers
necessary for that purpose, including but not limited to the power to interpret
this Agreement and the power to determine the rights hereunder of all persons.
The Committee shall maintain the records of the Company that relate to the
Option granted pursuant hereto, and shall have the power to adjust its records
as necessary to correct errors and rectify omissions, in the manner that the
Committee believes will best result in the equitable administration of the
Option granted pursuant hereto.
2.03 ORGANIZATION OF COMMITTEE. The Committee may elect
a chairman, and may adopt such rules as it deems desirable for the conduct of
its affairs and for the administration of the Option. The Committee may appoint
agents, who need not be members of the Committee, to whom it may delegate such
powers as it deems appropriate. The action of a majority of the members of the
Committee shall be the action of the Committee.
2.04 INDEMNIFICATION OF COMMITTEE MEMBERS. The Company
shall defend, indemnify and hold harmless each member of the Committee against
any and all claims, loss, damages, expense and liability arising from any actual
or alleged action or failure to act in connection with the administration of the
Option granted pursuant hereto, except when the same is judicially determined to
be due to the gross negligence or willful misconduct of such Committee member.
ARTICLE III
TERMS AND CONDITIONS
3.01 NUMBER OF SHARES SUBJECT TO OPTION. The Company
hereby grants to the Optionee, upon the terms and conditions set forth in this
Option Agreement, the option to purchase Five Thousand (5,000) shares of the
Common Stock of the Company.
3.02 EXERCISE PRICE. The price for which each Option
hereby granted to the Optionee may be exercised shall be $ 7.50 per share of the
Common Stock of the Company, which amount represents the Value of a share of the
Common Stock on the date of this Option Agreement.
3
<PAGE>
3.03 TIME FOR EXERCISE. The Option hereby granted to the
Optionee shall be exercisable at the following times:
With respect to Two Thousand Five Hundred (2,500) shares
of common stock, the Option shall be exercisable on or after the
date of this Option Agreement;
With respect to an additional Two Thousand Five Hundred
(2,500) shares of common stock, the Option shall be exercisable
on or after one year after the date of this Option Agreement.
The Option granted hereunder shall be exercisable for a period of five years
after such Option first becomes exercisable in accordance with the foregoing
provisions of this Section 3.03, unless the period of exercise is sooner
terminated in accordance with the provisions of this Option Agreement. The
Optionee shall have no right whatsoever to exercise the Option except during the
times provided above.
3.04 RESTRICTIONS ON TRANSFERS AND ENCUMBRANCE. During
the lifetime of the Optionee, the Option granted hereunder may not be sold,
pledged, assigned, hypothecated, encumbered or transferred in any manner, either
voluntarily or involuntarily, by operation of law or otherwise, except by will
or by applicable laws of descent and distribution, and may be exercised during
an Optionee's lifetime only by the Optionee or by the Optionee's legal
representative. Any Option that has not expired as of the date of the Optionee's
death may be exercised after the Optionee's death only by the person or persons
to whom the Optionee's interest in the Option have passed by will, by the terms
of a family trust agreement or other like instrument or by applicable laws of
descent and distribution.
3.05 EXERCISE AFTER DEATH OR DISABILITY. In the event
that the Optionee dies or becomes Disabled while in, or within ninety days after
ceasing to be a Director of the Company, the Optionee shall be treated for all
purposes of this Agreement as continuing in the service of the Company
throughout the period ending on the date as of which the last Option granted to
the Optionee hereunder would have expired under the provisions of this Article
III but for the Optionee's death or Disability.
3.06 EXERCISE SUBJECT TO SERVICE. The Optionee may
exercise the Option granted hereunder only if the Optionee has remained
continuously in the service of the Company or as a Director since the date on
which the Option sought to be exercised was granted to such Optionee, through a
date that is not more than two years prior to the date on which the Option is
sought to be exercised. The provisions of this Section shall not prevent the
individual or entity to whom an Option has passed by will or by applicable laws
of descent and distribution after the death of an Optionee from exercising the
Option within the period of time during which the Option is otherwise
exercisable under the provisions of this Option Agreement, if the Option was
exercisable under all provisions of this Agreement (including the provisions of
this Section 3.06) by the Optionee as of the date of the Optionee's death.
4
<PAGE>
ARTICLE IV
PROCEDURE FOR EXERCISE
4.01 TIME FOR EXERCISE. Subject to the provisions of
this Article IV, the Option granted hereunder shall be exercisable only during
the times provided in this Option Agreement.
4.02 EXERCISE UPON CORPORATE CAPITAL TRANSACTION. In the
event that the Company, its shareholders, or both, enter into a written
agreement to dispose of all or substantially all of the assets or Common Stock
of the Company by means of a sale, merger, consolidation, reorganization,
liquidation or similar transaction (other than a reorganization, merger or
consolidation effected solely to change the Company's name or state of
incorporation), the Option issued pursuant to this Option Agreement shall become
immediately exercisable, whether or not such Option was exercisable prior to
such event, during the period of time beginning with the date on which the
Company agrees in writing to enter into such transaction, and ending on the
earlier of the date the Option would otherwise have expired or the date on which
the transaction is consummated. Upon the consummation of the transaction, any
unexercised portion of the Option issued hereunder shall terminate and cease to
be effective. In the event that the agreement to enter into any such transaction
is terminated, all unexercised portions of the Option shall revert to the status
they had before the Company agreed to enter into the transaction in question.
Any exercise of Option made before the agreement to enter into the transaction
was terminated shall remain effective after the termination of the agreement,
notwithstanding that the Option may have become exercisable solely by reason of
the Company entering into the agreement.
4.03 WITHHOLDING OF TAXES. The Optionee hereby agrees
that the Company may, if it elects to do so, withhold federal, state and other
taxes attributable to taxable income realized by the Optionee upon the exercise
of Option from any compensation or other payment payable to such Optionee by the
Company.
4.04 EXERCISE. Subject to all other terms and provisions
of this Option Agreement, the Option granted hereunder shall be deemed to be
exercised when written notice of exercise has been given to the Company by the
Optionee or other person entitled to exercise the Option and full payment in
cash or cash equivalents (or with Common Stock of the Company if approved by the
Committee pursuant to Section 4.07) for the shares of Common Stock with respect
to which the Option is exercised has been received by the Company. Until
certificates have been issued for the number of Shares represented by the
exercise of the Option, the Optionee shall have no right to vote, to receive
dividends, or other right as a stockholder with respect to shares of Common
Stock purchased through the exercise of the Option. Except as provided in
Section 5.01 hereof, no adjustments shall be made for dividends or other rights
declared or paid with respect to stock acquired through the exercise of the
Option for which the record date is prior to the date on which a stock
certificate for such shares is issued.
4.05 EXERCISE IN INSTALLMENTS. Subject to Section 3.03,
the Optionee may exercise the Option in installments, but only in units of whole
shares of the Common Stock of the Company.
5
<PAGE>
4.06 ISSUANCE OF CERTIFICATES. As soon as practicable
after the Option has been exercised in accordance with the provisions of this
Option Agreement, the Company shall, without transfer or issue tax or other
charge to the Optionee, deliver to the Optionee at the principal business office
of the Company, or at such other place as may be agreed, certificates
representing the number of shares of Common Stock as to which the Option has
been exercised. The Company may, however, postpone the time of delivery of
certificates for such period of time as the Company may determine to be
necessary for it with reasonable diligence to comply with any applicable listing
requirements of any national or regional securities exchange, of the National
Association of Securities Dealers, Inc., or with any law or regulation
applicable to the issuance or delivery of shares of the Company's Common Stock.
ARTICLE V
RESTRICTIONS AND ADDITIONAL PROVISIONS
5.01 ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. If the
number of outstanding shares of the Common Stock of the Company is increased or
decreased, or if the Common Stock of the Company underlying the Option granted
pursuant to the provisions of this Option Agreement is changed into or exchanged
for a different number or kind of shares or securities of the Company through a
reorganization, merger, recapitalization, reclassification, stock dividend,
stock split or reverse stock split, an appropriate and proportionate adjustment
shall be made by the Committee in the terms and conditions of the Options
granted pursuant hereto, including the Exercise Price of the Option; provided,
however, that no such adjustment need be made if, upon the advice of legal
counsel to the Company, the Committee determines that any such adjustment could
result in the recognition of federal taxable income by the Optionee, or by
holders of Common Stock or other securities of the Company.
5.02 RESERVATION OF SHARES OF COMMON STOCK. The Company
shall, at all times during the periods of time during which the Option may be
exercised hereunder, reserve and keep available for issuance to the Optionee a
number of shares of its Common Stock sufficient to satisfy all obligations of
the Company hereunder.
5.03 RESTRICTIONS ON ISSUANCE OF SHARES. The Company
shall use its best efforts to seek and to obtain from appropriate regulatory
agencies any requisite authorization in order to issue and sell such number of
shares of its Common Stock as shall be sufficient to satisfy the obligations of
the Company under this Agreement. The inability of the Company to obtain
authorization deemed to be necessary by the Company's legal counsel to the
lawful issuance and sale of any shares of the Company's Common Stock shall
relieve the Company of any liability for the nonissuance or nonsale of any
Common Stock as to which the requisite approval or authorization shall not have
been obtained.
5.04 REPRESENTATIONS AND WARRANTIES. As a condition to
the exercise of the Option granted hereunder, the Committee may require the
person exercising the Option to make any representations or warranties to the
Company that legal counsel to the Company may determine to be required or
advisable under any applicable law or regulation, including without
6
<PAGE>
limitation a representation and warranty that the shares of the Company's Common
Stock being acquired are being acquired only for investment and without any
present intention or view to sell or distribute any such shares.
5.05 OPTIONEE RIGHTS. No provision of this Agreement
shall be deemed to constitute a condition of the service or status of any
Director. No provision of this Option Agreement shall be deemed to give to the
Optionee any right to be retained in the service of the Company or of any
Subsidiary Corporation in any capacity (whether as an employee, Director,
independent contractor or otherwise), or to interfere in any way with the right
of the Company and its Subsidiary Corporations at any time to remove any
Director, or to discontinue using the services of any individual. The Optionee
shall have no right or interest in any share of the Company's Common Stock prior
to exercise of the Option, except as provided in this Option Agreement.
5.06 LEGENDS ON STOCK CERTIFICATES. Unless an
appropriate registration statement is on file and effective with appropriate
federal, state and local governmental authorities, each certificate representing
Common Stock of the Company issued pursuant to the exercise of the Option shall
be endorsed on its face with a legend similar to the following:
Neither the Option pursuant to which the shares
represented by this certificate are issued nor the
shares represented hereby have been registered with the
Securities and Exchange Commission under the Securities
Act of 1933, as amended, or with any state securities
agency. The transfer or sale of the shares represented
hereby without appropriate registration, or pursuant to
an exemption from registration, is unlawful.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.01 NOTICES
(a) All notices, demands or requests provided for or
permitted to be given pursuant hereto must be in writing. All notices, demands
and requests shall be deemed to have been properly given or served when
deposited in the United States mail, addressed to the individual or entity to
whom notice is given, postage prepaid and registered or certified with return
receipt requested, at the last known address of such individual or entity.
(b) By giving at least fifteen (15) days prior written
notice, the Company, a Subsidiary Corporation and the Optionee shall have the
right from time to time to change their addresses and to specify any other
address within the United States of America.
6.02 TITLES AND CAPTIONS. All Article and Section titles
and captions in this Option Agreement are for convenience or reference only, and
shall not be deemed part of this
7
<PAGE>
Option Agreement, and in no way define, limit, extend or describe the scope or
intent of any provisions hereof.
6.03 PRONOUNS AND PLURALS. Whenever the context may
require, any pronoun used herein shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns, pronouns and verbs
shall include the plural and vice versa.
6.04 APPLICABLE LAW. This Option Agreement shall be
construed in accordance with and shall be governed by the laws of the State of
Nevada.
6.05 BINDING EFFECT. This Option Agreement shall be
binding upon the Optionee and upon the Optionee's heirs, executors,
administrators, successors, legal representatives and assigns.
6.06 CREDITORS. None of the provisions of this Option
Agreement shall be for the benefit of or shall be enforceable by any creditor of
the Optionee.
6.07 SEVERABILITY. In the event that any condition,
covenant or other provision herein contained is held to be invalid or void by
any court of competent jurisdiction, the same shall be deemed severable from the
remainder of this Option Agreement and shall in no way affect any other covenant
or condition herein contained. If such condition, covenant or other provision
shall be deemed invalid due to its scope or breadth, such provision shall be
deemed valid to the extent of the scope or breadth permitted by law.
6.08 PLAN CONTROLS. This Option Agreement is subject to
the terms and provisions of the Plan, and in the event of an inconsistency
herewith, the terms of the plan shall control.
8
<PAGE>
IN WITNESS WHEREOF, the Company and the Optionee have
executed this Option Agreement as of the date first set forth above.
"Company"
AMERICAN PACIFIC CORPORATION,
a Delaware corporation
By
--------------------------
Fred D. Gibson, Jr.
President
Attest:
- --------------------------
C. Keith Rooker
Secretary
"Optionee"
-----------------------------
---------------------
Address:
---------------------
---------------------
9
OLSHAN GRUNDMAN FROME & ROSENZWEIG LLP
505 PARK AVENUE, NEW YORK, NEW YORK 10022
(212) 753-7200
August 28, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: American Pacific Corporation - Registration
Statement on Form S-8 filed August 28, 1996
-------------------------------------------
Dear Sir or Madam:
We are counsel to American Pacific Corporation ("Registrant").
We furnish this opinion in connection with the above-referenced Registration
Statement relating to 118,000 shares of Common Stock of the Registrant issuable
upon the exercise of outstanding stock options granted or to be granted under
certain stock option plans (the "Securities") as set forth in the Registration
Statement.
In furnishing our opinion, we have examined the Certificate of
Incorporation and the By-Laws of the Registrant, and such other instruments and
documents, including the minutes of the meetings of the Board of Directors of
Registrant, as well as certificates of public officials and officers of the
Registrant, as we have deemed relevant and necessary as the basis for our
opinion expressed herein. We have examined originals or certified, conformed or
photostatic copies of all documents, the authenticity of which has been
established to our satisfaction. In all such examinations, we have assumed the
genuineness of all signatures on original and certified documents, and the
conformity to executed documents of all unexecuted copies submitted to us as
conformed or photostatic copies.
<PAGE>
August 28, 1996
Page -2-
Based upon the foregoing, we are of the opinion that the
Securities have been duly authorized and will be legally issued, fully paid and
non-assessable; subject, however, to receipt by the Registrant of the exercise
price for the options.
We hereby consent to use of this opinion in the Registration
Statement and Prospectus, and to the use of our name in the Prospectus under the
caption "Legal Matters".
We advise you that Victor M. Rosenzweig, a member of our Firm,
is a Director of the Registrant and holds 1,400 shares of Common Stock and
options to purchase 5,000 shares of Common Stock.
Very truly yours,
OLSHAN GRUNDMAN FROME & ROSENZWEIG LLP
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
American Pacific Corporation on Form S-8 of our report dated November 27, 1995
appearing in the Annual Report on Form 10-K of American Pacific Corporation for
the year ended September 30, 1995 and to the reference to us under the heading
"Experts" in the Prospectus, which is part of this Registration Statement.
/s/ DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Las Vegas, Nevada
August 26, 1996
