<PAGE> 1
As filed with the Securities and Exchange
Commission on March 30, 2000.
Registration No. __________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
---------------
GAINSCO, INC.
(Exact name of registrant as specified in its charter)
Texas 75-1617013
(State or other jurisdiction of (I.R.S. employer identification number)
incorporation or organization)
500 Commerce Street
Fort Worth, Texas 76102
(Address of principal executive offices)
---------------
GAINSCO, INC. 1998 LONG-TERM INCENTIVE PLAN
GAINSCO, INC. 1995 STOCK OPTION PLAN
AND
NONQUALIFIED STOCK OPTION AGREEMENT DATED JULY 24, 1998 FOR GLENN W. ANDERSON
PURSUANT TO EMPLOYMENT AGREEMENT DATED APRIL 25, 1998
(Full title of the Plans)
---------------
GLENN W. ANDERSON
President
500 Commerce Street
Fort Worth, Texas 76102
(Name and address of agent for service)
(817) 336-2500
(Telephone number, including area code, of agent for service)
---------------
COPY TO:
BYRON F. EGAN
Jackson Walker L.L.P.
901 Main Street, Suite 6000
Dallas, Texas 75202
(214) 953-5727
APPROXIMATE DATE OF PROPOSED COMMENCEMENT OF SALES PURSUANT TO THE PLAN:
From time to time after this Registration Statement becomes effective.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================================
Title of Amount Proposed Maximum Maximum Amount of
Securities to be Offering Price Per Offering Registration
to be Registered Registered Share (1) Price (1) Fee(1)
- --------------------------------------- ------------------ --------------------- ---------------- -------------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.10 2,650,710 $5.8125 $15,407,252 $4,068
per share shares
=====================================================================================================================
</TABLE>
- --------
(1) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(c) and 457(h), the offering price and registration fee
are based on a price of $5.8125 per share, which price is an average of the
high and low prices of the Common Stock on the New York Stock Exchange on
March 23, 2000. In addition, pursuant to Rule 416(c) under the Securities
Act of 1933, this Registration Statement also registers an indeterminate
number of shares of Common Stock to cover any adjustments in the number of
shares issuable pursuant to the plans named above, or options or other
awards granted thereunder, as a result of anti-dilution provisions
contained therein.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Note: The document(s) containing the information specified in Item 1 of
Part I of Form S-8 will be sent or given to employees as specified by Rule
428(b)(1). As specified in Form S-8, such documents are not filed with the
Commission either as part of this registration statement or as prospectuses or
prospectus supplements pursuant to Rule 424.
ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Note. The Registrant will provide a written statement to participants
advising them of the availability without charge, upon written or oral request,
of the documents incorporated by reference in Item 3 of Part II of this
registration statement, and stating that these documents are incorporated by
reference in the Section 10(a) prospectus. The statement also will indicate the
availability without charge, upon written or oral request, of other documents
required to be delivered to employees pursuant to Rule 428(b). The statement
will include the address (giving title or department) and telephone number to
which the request is to be directed.
2
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed with the Securities and
Exchange Commission (the "Commission") by the Registrant, are incorporated
herein by reference and made a part hereof: (i) Annual Report on Form 10-K for
the year ended December 31, 1999; and (ii) the description of the Registrant's
Common Stock contained in the Registrant's Registration Statement on Form 8-A
(No. 001-09828) filed July 7, 1996, as supplemented and amended by Exhibit 99.18
to the Form 8-K Report filed by the Registrant on October 7, 1999.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), subsequent to the date of this Registration Statement and prior to the
filing of a post-effective amendment that indicates that all securities offered
have been sold or that deregisters all securities then remaining unsold, shall
be deemed to be incorporated herein by reference and to be a part hereof from
the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document that also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such 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.
The class of Common Stock, par value $.10 per share, to be offered is
registered under Section 12(g) of the Exchange Act.
Plan interests are not being registered in this registration statement.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant is a Texas corporation and the Texas Business Corporation
Act (the "TBCA") empowers a corporation organized thereunder to indemnify its
directors and officers or former directors and officers and to purchase
insurance with respect to liability arising out of their capacity or status as
directors and officers.
3
<PAGE> 4
Reference is made to Article 9 of Registrant's Restated Articles of
Incorporation and Section 7.07 of Registrant's Bylaws, which provide for
indemnification of directors and officers to the full extent provided by
applicable law.
Additionally, Article 14 of the Registrant's Restated Articles of
Incorporation limits the personal liability of directors of the Registrant to
the Registrant or its shareholders for monetary damages for an act or omission
in such director's capacity as a director, except that such Article 14 does not
eliminate or limit the liability of a director for (i) a breach of the
director's duty of loyalty to the Registrant or its shareholders, (ii) an act or
omission not in good faith or that involves intentional misconduct or a knowing
violation of law, (iii) a transaction from which such director received an
improper benefit, whether or not the benefit resulted from an action taken
within the scope of such director's office, (iv) an act or omission for which
the liability of such director is expressly provided for by statute, or (v) an
act related to an unlawful stock purchase or payment of a dividend.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Securities Act"), 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
Commission, such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following is a list of all exhibits filed as a part of this
Registration Statement on Form S-8, including those incorporated herein by
reference.
4
<PAGE> 5
Exhibit
Number Description of Exhibit
- -------- -----------------------
*4.1 Restated Articles of Incorporation of Registrant as filed with
the Secretary of State of Texas on July 24, 1986 [Exhibit 3.1,
filed in Registration Statement No. 33-7846 on Form S-1,
effective November 6, 1986].
*4.2 Articles of Amendment to the Articles of Incorporation as filed
with the Secretary of State of Texas on June 10, 1988 [Exhibit
3.2, filed in Registration Statement No. 33-25226 on Form S-1,
effective November 14, 1988].
*4.3 Articles of Amendment to Articles of Incorporation as filed with
the Secretary of State of Texas on August 13, 1993 [Exhibit 3.6,
Form 10-K dated March 25, 1994].
*4.4 Statement of Resolution Establishing and Designating Series A
Convertible Preferred Stock of Registrant as filed with the
Secretary of State of the State of Texas on October 1, 1999
[Exhibit 99.18, Form 8-K dated June 29, 1999].
*4.5 Rights Agreement, dated as of March 3, 1988, between the
Registrant and Team Bank/Fort Worth, N.A. [Exhibit 1, Form 8-K
dated March 14, 1988].
*4.6 Amendment No. 1 dated as of March 5, 1990 to Rights Agreement
dated as of March 3, 1988 between Registrant and Team Bank as
Rights Agent [Exhibit 4.2, Form 10-K dated March 27, 1992].
*4.7 Amendment No. 2 dated as of May 25, 1993 to Rights Agreement
between Registrant and Society National Bank (successor to Team
Bank (formerly Texas American Bank/Fort Worth, N.A.)), as Rights
Agent [Exhibit 4.4, Form 10-K dated March 25, 1994].
*4.8 Amendment No. 3 to Rights Agreement and appointment of
Continental Stock Transfer & Trust Company as Successor Rights
Agent, dated September 30, 1994 [Exhibit 10.29, Form 10-K dated
March 30, 1995].
*4.9 Amendment No. 4 dated June 29, 1999 to Rights Agreement between
Registrant and Continental Stock Transfer & Trust Company
[Exhibit 99.21, Form 8-K dated June 29, 1999].
*4.10 Form of Common Stock Certificate [Exhibit 4.6, Form 10-K dated
March 28, 1997].
5
<PAGE> 6
*4.11 Agreement dated August 26, 1994 appointing Continental Stock
Transfer & Trust Company transfer agent and registrar [Exhibit
10.28, Form 10-K dated March 30, 1995].
*4.12 Revolving Credit Agreement dated November 13, 1998 among
Registrant, GAINSCO Service Corp. and Bank One, Texas, N.A.,
First Amendment thereto dated October 4, 1999 and related
Promissory Note, Security Agreement and Pledge Agreement
[Exhibits 10.50 to 10.53, Form 10-K/A dated March 30, 1999;
Exhibit 99.22, Form 8-K dated October 4, 1999].
*4.13 Securities Purchase Agreement dated as of June 29, 1999 between
Registrant and Goff Moore Strategic Partners, L.P. and related
Series A Common Stock Purchase Warrant and Series B Common Stock
Purchase Warrant [Exhibit 2.1, Form 8-K dated June 29, 1999;
Exhibits 99.19 and 99.20, Form 8-K dated October 4, 1999].
+5 Opinion of Jackson Walker L.L.P. regarding legality of registered
securities.
+23.1 Consent of KPMG LLP to incorporation by reference.
+23.2 Consent of Jackson Walker L.L.P. (included in the opinion of
Jackson Walker L.L.P. filed herewith).
+24 Powers of Attorney.
*99.1 1995 Stock Option Plan of the Registrant [Exhibit 10.31, Form
10-K dated March 28, 1996].
*99.2 1998 Long-Term Incentive Plan of the Registrant [Exhibit 99.8,
Form 10-Q Report dated August 10, 1998].
*99.3 Employment Agreement dated April 25, 1998 between Glenn W.
Anderson and the Registrant [Exhibit 99.5, Form 10-Q/A dated June
16, 1998].
*99.4 Nonqualified Stock Option Agreement dated July 24, 1998 between
Glenn W. Anderson and the Registrant made pursuant to Exhibit
99.3 [Exhibit 99.6, Form 10-Q Report dated August 10, 1998].
- ---------------------
* Exhibit has previously been filed with the Commission as an exhibit in
the filing designated in brackets and is incorporated herein by this
reference. Registrant's file number for reports filed under the
Securities Exchange Act of 1934 is 1-9828.
+ Filed herewith (see Exhibit Index).
6
<PAGE> 7
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;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof), which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of the
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
7
<PAGE> 8
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
THE REGISTRANT
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Fort Worth, State of Texas on the 30th day of March,
2000.
GAINSCO, INC.
By /s/ Glenn W. Anderson
----------------------
- --------------------------------------------------------------------------------
Glenn W. Anderson, President
8
<PAGE> 9
Pursuant to the requirements of the Securities Act, 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>
President, Chief
Executive Officer March 30, 2000
/s/ Glenn W. Anderson and Director
- --------------------------- (Principal Executive Officer)
Glenn W. Anderson
Senior Vice President,
Chief Financial Officer March 30, 2000
/s/ Daniel J. Coots and Director
- --------------------------- (Principal Financial and
Daniel J. Coots Accounting Officer)
Secretary
Sam Rosen* and Director March 30, 2000
- ---------------------------
Sam Rosen
J. Randall Chappel* Director March 30, 2000
- ---------------------------
J. Randall Chappel
John C. Goff* Director March 30, 2000
- ---------------------------
John C. Goff
Robert J. McGee, Jr.* Director March 30, 2000
- ---------------------------
Robert J. McGee, Jr.
Joel C. Puckett* Director March 30, 2000
- ---------------------------
Joel C. Puckett
Harden H. Wiedemann* Director March 30, 2000
- ---------------------------
Harden H. Wiedemann
</TABLE>
9
<PAGE> 10
<TABLE>
<S> <C> <C>
John H. Williams* Director March 30, 2000
- ---------------------
John H. Williams
</TABLE>
*By: /s/ Glenn W. Anderson
---------------------
Glenn W. Anderson,
Attorney-in-fact
Under Power of Attorney
10
<PAGE> 11
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Exhibit
- ----------- -------
<S> <C>
+5 Opinion of Jackson Walker L.L.P. regarding legality of
registered securities.
+23.1 Consent of KPMG LLP to incorporation by reference.
+23.2 Consent of Jackson Walker L.L.P. (included in the opinion of
Jackson Walker L.L.P. filed herewith).
+24 Powers of Attorney.
</TABLE>
11
<PAGE> 1
EXHIBIT 5
March 30, 2000
GAINSCO, INC.
500 Commerce Street
Fort Worth, Texas 76102-5439
Re: Registration Statement on Form S-8 of GAINSCO, INC.
Gentlemen:
We are acting as counsel for GAINSCO, INC., a Texas corporation (the
"Company"), in connection with the registration under the Securities Act of
1933, as amended (the "Act"), of the offering and sale of up to 2,650,710 shares
of the Company's Common Stock, par value $0.10 per share (the "Shares"), in
respect of the GAINSCO, INC. 1998 Long-Term Incentive Plan, GAINSCO, INC. 1995
Stock Option Plan and Nonqualified Stock Option Agreement dated July 24, 1998
for Glenn W. Anderson pursuant to Employment Agreement dated April 25, 1998 (the
"Plans"). A Registration Statement on Form S-8 covering the offering and sale of
the Shares (the "Registration Statement") is expected to be filed with the
Securities and Exchange Commission (the "Commission") on or about the date
hereof.
In reaching the conclusions expressed in this opinion, we have examined
and relied upon the originals or certified copies of all documents, certificates
and instruments as we have deemed necessary to the opinions expressed herein,
including the Restated Articles of Incorporation, as amended, the Bylaws of the
Company and copies of the Plans. In making the foregoing examinations, we have
assumed the genuineness of all signatures on original documents, the
authenticity of all documents submitted to us as originals and the conformity to
original documents of all copies submitted to us.
Based solely upon the foregoing, subject to the comments hereinafter
stated, and limited in all respects to the laws of the State of Texas, the Texas
Business Corporation Act and the federal laws of the United States of America,
it is our opinion that the Shares, when sold by the Company in respect of the
Plans, will be validly issued, fully paid and nonassessable.
We hereby consent to the use of this opinion as Exhibit 5 to the
Registration Statement. In giving this consent, we do not admit that we come
within the category of persons whose consent is required under Section 7 of the
Act or the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Jackson Walker L.L.P.
12
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
TO INCORPORATION BY REFERENCE
The Board of Directors
GAINSCO, INC.:
We consent to the incorporation by reference herein of our report dated February
25, 2000, relating to the consolidated balance sheets of GAINSCO, INC. and
subsidiaries as of December 31, 1999 and 1998, and the related consolidated
statements of operations, shareholders' equity and comprehensive income, and
cash flows for each of the years in the three-year period ended December 31,
1999, and all related schedules, which reports appear in the December 31, 1999
Annual Report on Form 10-K of GAINSCO, INC.
/s/ KPMG LLP
KPMG LLP
Dallas, Texas
March 30, 2000
13
<PAGE> 1
SPECIAL POWER OF ATTORNEY
The undersigned hereby appoints Glenn W. Anderson, Daniel J. Coots and
Joel C. Puckett, and each of them (with full power in each to act alone), as
attorneys and agents for the undersigned, with full power of substitution, for
and in the name, place and stead of the undersigned, to sign, in my capacity as
a director or officer of GAINSCO, INC., a Texas corporation ("GNA"), and file
with the Securities and Exchange Commission ("SEC") under the Securities Act of
1933 or the Securities Exchange Act of 1934, as the case may be, GNA's Annual
Report on Form 10-K for its fiscal year ended December 31, 1999 and one or more
Form S-8 Registration Statements covering GNA's 1998 Long-Term Incentive Plan,
1995 Stock Option Plan, 1990 Stock Option Plan, Profit Sharing Plan and Trust,
401(k) Plan, any Nonqualified Stock Option Agreement between GNA and Glenn W.
Anderson or any other employee, officer, director or consultant of GNA or any of
its subsidiaries, and any other employee benefit and stock option plans that GNA
or any of its subsidiaries may have heretofore adopted or may hereafter adopt,
including any and all amendments (including pre-effective and post-effective
amendments to filings heretofore or hereafter made) and exhibits to said filings
and any and all applications, instruments and other documents to be filed with
the SEC or any state regulatory agency pertaining to the registration of
securities of GNA, with full power and authority to do and perform any and all
acts and things whatever that they or he may deem requisite or desirable in
their or his sole discretion in the premises as fully and to all intents and
purposes as the undersigned might or could do in person, and to file copies of
this power of attorney with the SEC or any such agency or body. The power and
authority hereby granted shall continue until revoked by a written instrument of
revocation delivered to the President of GNA.
Witness my hand this 8th day of March 2000.
By: /s/ Sam Rosen
-----------------------------------
Witness my hand this 27th day of March 2000.
By: /s/ J. Randall Chappel
-----------------------------------
Witness my hand this 16th day of March 2000.
By: /s/ John C. Goff
-----------------------------------
Witness my hand this 10th day of March 2000.
By: /s/ Robert J. McGee, Jr.
-----------------------------------
14
<PAGE> 2
Witness my hand this 9th day of March 2000.
By: /s/ Joel C. Puckett
-----------------------------------
Witness my hand this 23rd day of March 2000.
By: /s/ Harden H. Wiedemann
-----------------------------------
Witness my hand this 9th day of March 2000.
By: /s/ John H. Williams
-----------------------------------
15
