As filed with the Securities and Exchange Commission on December 16, 1997
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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GRAY COMMUNICATIONS SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
Georgia 58-0285030
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
126 North Washington Street
Albany, Georgia 31701
(912) 888-9390
(Address of principal executive offices) (Zip code)
Gray Communications Systems, Inc. Non-Employee Directors Stock Option Plan
(Full title of the plan)
William A. Fielder III
Vice President and Chief Financial Officer
Gray Communications Systems, Inc.
126 North Washington Street
Albany, Georgia 31701
(912) 434-8732
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
Henry O. Smith III
Proskauer Rose LLP
1585 Broadway
New York, New York 10036
(212) 969-3000
Neal H. Ray
Heyman & Sizemore
2300 International Tower
229 Peachtree Street, N.E.
Atlanta, Georgia 30303
(404) 521-2268
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed maximum Proposed maximum Amount of
Title of securities to be Amount to be offering price aggregate offering registration
registered registered per unit(1) price(1) Fee
<S> <C> <C> <C> <C>
Class B Common Stock, 37,500 shares $15.875 $ 595,312 $ 180
no par value
Class B Common Stock, 187,500 shares $21.719 4,072,313 1,234
no par value ------- ----- ----
Total........................ 225,000 shares $4,667,625 $1,414
======= ======= ===
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933 with respect
to 37,500 shares and pursuant to Rules 457(c) and (h) as to 187,500
shares.
2
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference.
The following documents filed with the Securities and Exchange
Commission by Gray Communications Systems, Inc., a Georgia corporation (the
"Company" or the "Registrant"), are incorporated herein by reference:
(1) the Company's Annual Report on Form 10-K for the year
ended December 31, 1996;
(2) the Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1997;
(3) the Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1997;
(4) the Company's Current Report on Form 8-K, dated August 14,
1997, as amended by a Form 8-K/A, dated October 13, 1997;
(5) the Company's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1997; and
(6) the description of the Company's Class B Common Stock, no
par value, contained in the Company's Registration Statement filed on
Form 8-A, dated September 13, 1996.
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be part hereof from the date of filing such documents. Any statement in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for the purposes of this Registration
Statement to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
Not applicable.
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<PAGE>
Item 6. Indemnification of Directors and Officers.
The Business Corporation Code of the State of Georgia grants
corporations incorporated thereunder (such as the Company) the power to
indemnify its officers and directors against liability for certain of their
acts.
The Company's Articles of Incorporation eliminate the liability of
directors to stockholders of the Company for monetary damages arising out of the
directors' breach of their fiduciary duty of care. The By-laws of the Company
authorize indemnification of its directors, officers, incorporators, employees,
and agents with respect to certain costs, expenses, and amounts incurred in
connection with an action, suit, or proceeding by reason of the fact that such
person was serving as a director, officer, incorporator, employee, or agent of
the Company.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
3.1 Articles of Incorporation of Gray Communications Systems,
Inc., as amended (incorporated by reference to Exhibit 3 to
the Company's Form 10 dated October 7, 1991, as amended on
January 29, 1992 and March 2, 1992, and Exhibit 3(i) to the
Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 1993)
3.2 Articles of Amendment to the Articles of Incorporation of Gray
Communications Systems, Inc. relating to the Class A Common
Stock and the Class B Common Stock and the Series A Preferred
Stock and Series B Preferred Stock (incorporated by reference
to Exhibit 3.1.1 to the Company's Registration Statement on
Form S-1 (Registration No. 333-4338))
3.3 By-Laws of Gray Communications Systems, Inc., as amended
(incorporated by reference to Exhibit 3(i) to the Company's
Form 10 dated October 7, 1991, as amended on January 29, 1992
and March 2, 1992, Exhibit 3(i) to the Company's Annual Report
on Form 10-K for the fiscal year ended June 30, 1993 and
Exhibit 3(d) to the Company's Annual Report on Form 10-K for
the transition period from July 1, 1993 to December 31, 1993)
3.4 Amendment to the By-Laws of Gray Communication Systems, Inc.
dated September 3, 1996 (incorporated by reference to Exhibit
3.2.1 to the Company's Registration Statement on Form S-1
(Registration No. 333-4338))
5 Opinion of Heyman & Sizemore re: validity of securities
23.1 Consent of Ernst & Young LLP as to use of their report on the
financial statements for Gray Communications Systems, Inc.
23.2 Consent of Ernst & Young LLP as to use of their report on
certain financial statements of the Broadcasting and Paging
Operations of John H. Phipps, Inc.
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<PAGE>
23.3 Consent of Heyman & Sizemore (included in Exhibit 5)
24 Power of Attorney (see signature page)
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,
(i) 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;
(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 (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8, or Form F-3,
and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by
the Registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at the 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 of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 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 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
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<PAGE>
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer, or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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<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 Atlanta, State of Georgia, on December 11, 1997.
GRAY COMMUNICATIONS SYSTEMS, INC.
By /s/ J. Mack Robinson
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J. Mack Robinson
President
SIGNATURES AND POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each director and officer whose
signature appears below hereby constitutes and appoints Jackson S. Cowart IV and
William A. Fielder III, or either of them, as his or her true and lawful
attorney-in-fact and agent, with full power of substitution, to sign on his or
her behalf individually and in any and all capacities any and all amendments
(including post-effective amendments) to a Registration Statement on Form S-8
relating to the registration under the Securities Act of 1933 of shares of Class
B Common Stock of Gray Communications Systems, Inc. under the Non-Employee
Directors Stock Option Plan of Gray Communications Systems, Inc. and to file the
same with all exhibits thereto and all other documents in connection therewith
with the Securities and Exchange Commission, granting to such attorneys-in-fact
and agents, and each of them, full power and authority to do all such other acts
and things requisite or necessary to be done, and to execute all such other
documents as they, or either of them, may deem necessary or desirable in
connection with the foregoing, as fully as the undersigned might or could do in
person, hereby ratifying and confirming all that such attorneys-in-fact and
agents, or either of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
<S> <C> <C>
/s/ J. Mack Robinson President and Director December 11, 1997
- -------------------- (principal executive officer)
J. Mack Robinson
/s/ William A. Fielder III Vice President and Chief December 11, 1997
- -------------------------- Financial Officer (principal
William A. Fielder III financial and accounting officer)
/s/ Richard L. Boger Director December 11, 1997
- --------------------
Richard L. Boger
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<PAGE>
/s/ Hilton H. Howell, Jr. Director December 11, 1997
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Hilton H. Howell, Jr.
/s/ William E. Mayher III Director December 11, 1997
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William E. Mayher III
/s/ Howell W. Newton Director December 11, 1997
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Howell W. Newton
/s/ Hugh Norton Director December 11, 1997
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Hugh Norton
/s/ Robert S. Prather, Jr. Director December 11, 1997
- --------------------------
Robert S. Prather, Jr.
/s/ Harriett J. Robinson Director December 11, 1997
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Harriett J. Robinson
</TABLE>
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EXHIBIT 5
December 16, 1997
Gray Communications Systems, Inc.
126 North Washington Street
Albany, Georgia 31701
Dear Sirs:
We are acting as counsel to Gray Communications Systems, Inc., a Georgia
corporation (the "Company"), in connection with the Registration Statement on
Form S-8 with exhibits thereto (the "Registration Statement") filed by the
Company under the Securities Act of 1933, as amended, and the rules and
regulations thereunder, relating to the registration of 225,000 shares of Class
B Common Stock, no par value (the "Shares"), of the Company. The Shares are to
be issued by the Company pursuant to the Company's Non-Employee Directors Stock
Option Plan (the "Plan").
As such counsel, we have participated in the preparation of the Registration
Statement and have reviewed the corporate minutes relating to the issuance of
the Shares pursuant to the Plan and have also examined and relied upon originals
or copies, certified or otherwise authenticated to our satisfaction, of all such
corporate records, documents, agreements, and instruments relating to the
Company, and certificates of public officials and of representatives of the
Company, and have made such investigations of law, and have discussed with
representatives of the Company and such other persons such questions of fact, as
we have deemed proper and necessary as a basis for rendering this opinion.
Based upon, and subject to, the foregoing, we are of the opinion that the
Shares are duly authorized and, upon issuance of the Shares in accordance with
the terms of the Plan, will be, assuming no change in the applicable law or
pertinent facts, validly issued, fully paid, and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. In giving the foregoing consent, we do not admit that we
are in the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission promulgated thereunder.
Very truly yours,
/s/ Heyman & Sizemore
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement
pertaining to the Gray Communications Systems, Inc. Non-Employee Directors Stock
Option Plan of our report, dated January 27, 1997 (except for Pending
Acquisitions of Note C, as to which the date is February 13, 1997), with respect
to the consolidated financial statements of Gray Communications Systems, Inc.
(the "Company") included in the Company's Annual Report on Form 10-K for the
year ended December 31, 1996.
ERNST & YOUNG LLP
Atlanta, Georgia
December 12, 1997
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement
pertaining to the Gray Communications Systems, Inc. Non-Employee Directors Stock
Option Plan of our report, dated February 12, 1997, with respect to the
financial statements of the Broadcasting and Paging Operations of John H.
Phipps, Inc. included in the Annual Report on Form 10-K for the year ended
December 31, 1996 of Gray Communications Systems, Inc.
ERNST & YOUNG LLP
Atlanta, Georgia
December 12, 1997
