As filed with the Securities and Exchange Commission on October 23, 1996.
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
QMS, INC.
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(Exact Name of Registrant as Specified in its Charter)
DELAWARE 63-0737870
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
ONE MAGNUM PASS, MOBILE, ALABAMA 36618
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(Address of Principal Executive Offices) (Zip Code)
STOCK OPTION PLAN FOR DIRECTORS
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(Full Title of the Plan)
GERALD G. ROENKER
QMS, INC.
ONE MAGNUM PASS, MOBILE, ALABAMA 36618
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(Name and Address of Agent for Service)
(334) 633-4300
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(Telephone Number, Including Area Code, of Agent for Service)
COPY TO:
G. WILLIAM SPEER, ESQ.
POWELL, GOLDSTEIN, FRAZER & MURPHY
191 PEACHTREE STREET, N.E.
SIXTEENTH FLOOR
ATLANTA, GEORGIA 30303
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered(1) Share(2) Price(3) Fee
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<S> <C> <C> <C> <C>
Common Stock, 250,000 $5.4375 $1,359,375 $412
$0.01 par value shares
</TABLE>
(1) Representing shares of the Registrant's Common Stock, $.01 par value (the
"Common Stock") to be issued and sold by the Registrant in connection with the
exercise of options granted under the Registrant's Stock Option Plan for
Directors (the "Plan"). This Registration Statement also covers such
indeterminable number of additional shares as may become issuable to prevent
dilution in the event of stock splits, stock dividends or similar transactions
pursuant to the terms of the Plan.
(2) Based on the average of the high and low prices of the Registrant's Common
Stock as reported on the New York Stock Exchange of October 22, 1996.
(3) Estimated solely for the purposes of calculating the registration fee
pursuant to Rule 457(h)(1) under the Securities Act of 1933, as amended.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of the
instructions to the Registration Statement on Form S-8 will be sent or given to
employees of the Registrant selected to participate in the Plan as required by
Rule 428(b)(1) promulgated under the Securities Act of 1933, as amended.
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
(the "Commission") (Commission File No. 1-9348, formerly 0-11394) are
incorporated herein by reference:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year ended
September 29, 1995;
(2) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
December 29, 1995;
(3) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 29, 1996;
(4) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 28, 1996;
(5) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed pursuant to
Section 12 of the Securities Exchange Act of 1934 (the "Exchange
Act").
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment indicating that all securities offered hereby have been
sold or that deregisters all such securities then remaining unsold, shall be
deemed to be incorporated by reference in the registration statement and to be a
part hereof from the date of filing of such documents.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant generally is authorized by the General Corporation Law of
Delaware (the "DGCL") and its Certificate of Incorporation and Bylaws to
indemnify the directors, officers, employees and agents of the Registrant
against liabilities and expenses incurred by them in such capacities and in
certain other specified capacities.
The Registrant maintains directors' and officers' liability and
corporation reimbursement insurance policies covering claims made against its
directors and officers for certain wrongful acts done in such capacities and
providing reimbursement to the Registrant for its indemnification of its
directors and officers in respect of such claims.
The Registrant has entered into indemnification agreements
("Indemnification Agreements") with each of its directors, including those
directors who are members of the Committee. The Indemnification Agreements
provide that an indemnitee serving as a director or officer of the Registrant or
serving at the request of the Registrant as a director, officer, employee or
agent of another entity will be indemnified to the full extent permitted by the
DGCL and that expenses incurred in defending or investigating such actions shall
be paid by the Registrant in advance of the final disposition of such action, if
the Indemnitee shall undertake to repay such amount in the event that it is
ultimately determined that he is not entitled to indemnification. Under the
Indemnification Agreements, no indemnification and no advance of expenses shall
be made by the Registrant if the determination is reasonably and promptly made
that the indemnitee acted in bad faith and in a manner that such person did not
believe to be in or not opposed to the best interest of the Registrant or, with
respect to any criminal proceeding, that such person believed or had reasonable
cause to believe that his conduct was unlawful. No advance shall be made in
instances where the Registrant's Board of Directors or independent legal counsel
reasonably determines that the indemnitee deliberately breached his duty to
Registrant's or its stockholders. The Indemnification Agreements also set forth
certain procedures to be followed should an indemnification situation arise.
The Indemnification Agreements do not provide for indemnity where the indemnitee
has other indemnification or insurance coverage for the subject claim, or if,
with respect to the matters giving rise to the claim, he (i) received an
improper personal benefit, (ii) violated Section 16(b) of the Securities
Exchange Act of 1934 or (iii) committed certain acts of dishonesty.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
registrant pursuant to the foregoing provisions, the Registrant has been
informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is
therefore unenforceable.
ITEM 8. EXHIBITS.
The following exhibits are filed with or incorporated by reference into
this Registration Statement pursuant to Item 601 of Regulation S-K.
Exhibit
Number Description
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3(a) Restated Certificate of Incorporation, as amended as of
February 17, 19871/ and Certificate of Amendment thereto
filed with the Secretary of State of Delaware as of
January 31, 1991.2/
3(b) Bylaws of Registrant.1/
4(a) The rights of security holders as defined in Articles 4, 9
and 10 of the Restated Certificate of Incorporation of the
Registrant, Articles II, VI and VII of the Bylaws of the
Registrant and the Rights Agreement. (Incorporated herein
by reference to Exhibits 3(a), 3(b) and 4(b),
respectively.)
4(b) Rights Agreement dated November 30, 1988.3/
5 Opinion of counsel with respect to the securities being
registered.
10 Stock Option Plan for Directors.4/
23(a) Consent of counsel (included in Exhibit 5).
23(b) Consent of independent auditors.
24 Power of Attorney (see signature pages to this Registration
Statement).
1/ Incorporated herein by reference to exhibit of same number in Registrant's
Annual Report on Form 10-K for fiscal year ended October 2, 1987 (Commission
File No. 1-9348).
2/ Incorporated herein by reference to exhibit of same number in Registrant's
Annual Report on Form 10-K for fiscal year ended September 27, 1991 (Commission
File No. 1-9348).
3/ Incorporated herein by reference to exhibit of same number in Registrant's
Annual Report on Form 10-K for fiscal year ended September 30, 1988 (Commission
File No. 1-9348).
4/ Incorporated herein by reference to Appendix B to the Registrant's Proxy
Statement for the Annual Meeting of Stockholders held on January 25, 1994
(Commission File No. 1-9348).
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 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 (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8 and
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 Section 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 that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in 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 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.
SIGNATURES
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Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Orlando, Florida, on the 23rd day of October, 1996.
QMS, INC.
By: /s/ James L. Busby
---------------------
James L. Busby
President
POWER OF ATTORNEY
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KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints James L. Busby, as his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (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, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, 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 substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities
indicated on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ James L. Busby President and Director October 23, 1996
James L. Busby (Principal Executive Officer)
/s/ Gerald G. Roenker Executive Vice President, Chief October 23, 1996
Gerald G. Roenker Operating Officer, and Treasurer
(Principal Financial Officer)
/s/ Donald L. Parker, Ph.D. Executive Vice President, October 23, 1996
Donald L. Parker, Ph.D. Chief Technology Officer,
and Director
/s/ Richard A. Wiggins Vice President and Corporate October 23, 1996
Richard A. Wiggins Controller
/s/ Lucius E. Burch, III Director October 23, 1996
Lucius E. Burch, III
/s/ Rigdon Currie Director October 23, 1996
Rigdon Currie
/s/ Charles D. Daley Director October 23, 1996
Charles D. Daley
/s/ Michael C. Dow Director October 23, 1996
Michael C. Dow
/s/ Jack Edwards Director October 23, 1996
Jack Edwards
/s/ S. Felton Mitchell, Jr. Director October 23, 1996
S. Felton Mitchell, Jr.
</TABLE>
EXHIBIT INDEX
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Exhibit Page
Number Description Number
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3(a) Restated Certificate of Incorporation, as amended as of
February 17, 19871/ and Certificate of Amendment thereto
filed with the Secretary of State of Delaware as of
January 31, 1991.2/
3(b) Bylaws of Registrant.1/
4(a) The rights of security holders as defined in Articles 4, 9
and 10 of the Restated Certificate of Incorporation of the
Registrant, Articles II, VI and VII of the Bylaws of the
Registrant and the Rights Agreement. (Incorporated herein by
reference to Exhibits 3(a), 3(b) and 4(b), respectively.)
4(b) Rights Agreement dated November 30, 1988.3/
5 Opinion of counsel with respect to the securities
being registered.
10 Stock Option Plan for Directors.4/
23(a) Consent of counsel (included in Exhibit 5).
23(b) Consent of independent auditors.
24 Power of Attorney (see signature pages to this Registration
Statement).
1/ Incorporated herein by reference to exhibit of same number in Registrant's
Annual Report on Form 10-K for fiscal year ended October 2, 1987 (Commission
File No. 1-9348).
2/ Incorporated herein by reference to exhibit of same number in Registrant's
Annual Report on Form 10-K for fiscal year ended September 27, 1991 (Commission
File No. 1-9348).
3/ Incorporated herein by reference to exhibit of same number in Registrant's
Annual Report on Form 10-K for fiscal year ended September 30, 1988 (Commission
File No. 1-9348).
4/ Incorporated herein by reference to Appendix B to the Registrant's Proxy
Statement for the Annual Meeting of Stockholders held on January 25, 1994
(Commission File No. 1-9348).
Exhibit 5
October 23, 1996
QMS, Inc.
One Magnum Pass
Mobile, Alabama 36618
Re: Registration Statement on Form S-8
Stock Option Plan for Directors
Ladies and Gentlemen:
We have served as counsel for QMS, Inc., a Delaware corporation (the
"Company"), in connection with the registration under the Securities Act
of 1933, as amended, pursuant to a Registration Statement on Form S-8 (the
"Registration Statement") of an aggregate of 250,000 shares (the "Shares") of
common stock, $.01 par value, of the Company, to be offered and sold by the
Company pursuant to the Company's Stock Option Plan for Directors (the
"Plan").
We have examined and are familiar with originals or copies (certified,
photostatic or otherwise identified to our satisfaction) of such documents,
corporate records and other instruments relating to the incorporation of the
Company and the adoption of the Plan as we have deemed necessary and advisable.
In all such examinations, we have assumed the genuineness of all signatures
on all originals and copies of documents we have examined, the authenticity of
all documents submitted to us as originals and the conformity to original
documents of all certified, conformed or photostatic copies. As to questions of
fact material and relevant to our opinion, we have relied upon certificates or
representations of Company officials and of appropriate state, local and federal
officials.
This opinion is limited to the Delaware General Corporation Law.
QMS, Inc.
October 23, 1996
Page 2
Based upon and subject to the foregoing and having regard for such legal
considerations as we have deemed relevant, it is our opinion that:
1. The Shares have been duly authorized; and
2. Upon the issuance and delivery of the Shares upon receipt of lawful
consideration therefor pursuant to the Plan, such Shares will be validly
issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
/s/ Powell, Goldstein, Frazer & Murphy
----------------------------------------
POWELL, GOLDSTEIN, FRAZER & MURPHY
Exhibit 23(b)
We consent to the incorporation by reference in this Registration Statement
of QMS, Inc. on Form S-8 of our reports dated November 7, 1995 (December 8, 1995
as to Note 18) included in the Annual Report on Form 10-K of QMS, Inc. for the
year ended September 29, 1995.
/s/ Deloitte & Touche LLP
--------------------------
DELOITTE & TOUCHE LLP
Birmingham, Alabama
October 23, 1996
