As filed with the Securities and Exchange Commission on August 5, 1998
Registration No. 333-____
_______________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________________
SHOWPOWER, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 95-4678707
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
18128 S. SANTA FE AVENUE, RANCHO DOMINGUEZ, CALIFORNIA 90221
(Address of Principal Executive Offices) (Zip Code)
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SHOWPOWER, INC.
1998 STOCK OPTION AND INCENTIVE PLAN
(Full title of the plans)
JOHN J. CAMPION
CHIEF EXECUTIVE OFFICER
SHOWPOWER, INC.
18128 S. SANTA FE AVENUE, RANCHO DOMINGUEZ, CALIFORNIA
(Name and address of agent for service)
(310) 604-9676
(Telephone number, including area code, of agent for service)
COPY TO:
David C. Worrell
Baker & Daniels
300 North Meridian Street, Suite 2700
Indianapolis, Indiana 46204-1782
(317) 237-0300
CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED (1) OFFERING PRICE PER SHARE AGGREGATE OFFERING PRICE REGISTRATION FEE
(2) (2)
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Common Stock, 565,500 $13.6875 (3) $7,740,281 (3) $2,283.38 (3)
$0.01 par value
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(1) Pursuant to Rule 416 under the Securities Act of 1933 (the "Securities
Act"), this Registration Statement, also registers such additional shares
of Common Stock as may be offered or issued to prevent dilution resulting
from stock splits, stock dividends and similar transactions.
(2) It is impracticable to state the maximum offering price. Shares offered
pursuant to incentive stock options granted under the Showpower, Inc. 1998
Stock Option and Incentive Plan (the "Plan") are to be offered at not less
than fair market value of one share of Common Stock of Showpower, Inc. on
the date the options are granted, and shares offered pursuant to
nonqualified stock options granted under the Plan are to be offered at not
less than 85% of the fair market value of one share of Common Stock of
Showpower, Inc. on the date the options are granted.
(3) Estimated solely for purposes of calculating the registration fee and
computed in accordance with Rule 457(c) and (h) under the Securities Act
using the average of the high and low sale prices of the Common Stock as
reported by The American Stock Exchange ("AMEX") on July 29, 1998.
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PART I
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
The Section 10(a) prospectus for the Showpower, Inc. 1998 Stock Option and
Incentive Plan is not required to be filed with the Securities and Exchange
Commission as part of this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Company's latest prospectus filed pursuant to Rule 424(b) under the
Securities Act (Registration No. 333-50595) and the description of the
Company's Common Stock contained in the Company's Registration Statement on
Form 8-A dated June 8, 1998, filed pursuant to the Securities Exchange Act of
1934 (the "Exchange Act"), including any amendments or reports filed for the
purpose of updating such description, are incorporated herein by reference.
All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act
since the end of the fiscal year for which audited financial statements are
contained in the Rule 424(b) prospectus described above are incorporated herein
by reference. All documents filed by the Company pursuant to Sections 13(a),
13(c), 14, or 15(d) of the Exchange Act after the date hereof and prior to the
termination of the offering of the securities offered hereby shall be deemed to
be incorporated by reference herein and to be a part hereof from the date of
filing of such documents with the Commission. The Company will promptly
provide without charge to each person to whom a prospectus is delivered, a copy
of any or all information that has been incorporated herein by reference (not
including exhibits to the information that is incorporated by reference unless
such exhibits are specifically incorporated by reference into such
information), upon the written or oral request of such person directed to the
Secretary of the Company at its principal offices, 18128 S. Santa Fe Avenue,
Rancho Dominguez, California 90221, (310) 604-9676.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Reference is hereby made to Section 145 of the General Corporation Law of
the State of Delaware (the "DGCL"), which provides that a corporation will have
the power to 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 (a
"proceeding"), 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, with
respect to the payment of certain amounts under certain circumstances.
Article IX (the "Article") of the Certificate of Incorporation of Showpower,
Inc. (the "Company"), provides that the Company will indemnify and advance
expenses to, to the fullest extent permitted by applicable law, any person who
was or is made or is threatened to be made a party or is otherwise involved in
any proceeding by reason of the fact that he, or a person for whom he is the
legal representative, is or was a director, officer, employee or agent of the
Company or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation or of a partnership, joint
venture, trust, enterprise or non-profit entity, including service with respect
to employee benefit plans.
The Article provides that the rights to indemnification and advancement of
expenses conferred by the Article are presumed to have been relied upon by
directors and officers of the Company in serving or continuing to serve the
Company and are enforceable as contract rights. Said rights are not exclusive
of any other rights to which those seeking indemnification may otherwise be
entitled. The Article further provides that the Company may enter into
contracts to provide its directors and officers with specific rights to
indemnification, which contracts may confer rights and protections to the
maximum extent permitted by the DGCL. In addition, the Company may create
trust funds, grant security interests, obtain letters of credit or use other
means to ensure payment of such amounts as may be necessary to perform the
obligations provided for in the Article or in any such contract.
The Article states that any repeal or modification of the Article by the
stockholders of the Company will not adversely affect any right or protection
of a director of the Company existing at the time of such repeal or
modification with respect to acts or omissions occurring prior to such repeal
or modification.
The Article further provides that the personal liability of a director of
the Company is eliminated to the fullest extent permitted by Section 102(b)(7)
of the DGCL, as the same may be amended and supplemented. The Article states
that, without limiting the generality of the foregoing, no director will be
personally liable to the Company or any of its stockholders for monetary
damages for breach of fiduciary duty as a director, except for liability (i)
for any breach of the director's duty of loyalty to the Company or its
stockholders, (ii) for acts or omissions not in good faith or which involve
misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the
DGCL (relating to unlawful distributions and redemptions of shares), or (iv)
for any transaction from which the director derived an improper personal
benefit.
In addition, the Company has a directors' and officers' liability and
company reimbursement policy that insures the Company and its directors and
officers against certain liabilities, including liabilities under the
Securities Act of 1933, as amended, subject to applicable retentions.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The list of Exhibits is incorporated herein by reference to the Index to
Exhibits.
ITEM 9. UNDERTAKINGS.
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 (1)(i) and (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 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.
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.
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 an
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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SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Rancho Dominguez, State of California, on August 4, 1998.
SHOWPOWER, INC.
By: /S/ JOHN J. CAMPION
John J. Campion
Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in their respective
capacities and on the respective dates indicated opposite their names. Each
person whose signature appears below hereby authorizes each of John J. Campion
and Jeffrey B. Stone, each with full power of substitution, to execute in the
name and on behalf of such person any post-effective amendment to this
Registration Statement and to file the same, with exhibits thereto, and other
documents in connection therewith, making such changes in this Registration
Statement as the registrant deems appropriate, and appoints each of John J.
Campion and Jeffrey B. Stone, each with full power of substitution, attorney-
in-fact to sign any amendment and any post-effective amendment to this
Registration Statement and to file same, with exhibits thereto, and other
documents in connection therewith.
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Signatures Capacity Date
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/S/ JOHN J. CAMPION Chief Executive Officer and Director August 4, 1998
John J. Campion (Principal Executive Officer)
/S/ MICHAEL W. CRABBE Vice President/Chief Financial Officer August 4, 1998
Michael W. Crabbe (Principal Financial Officer and
Principal Accounting Officer)
/S/ JEFFREY B. STONE Chairman of the Board August 4, 1998
Jeffrey B. Stone
/S/ JOSEPH A. ADES Director August 4, 1998
Joseph A. Ades
/S/ DAVID C. BERNSTEIN Director August 4, 1998
David C. Bernstein
/S/ ROBERT E. MASTERSON Director August 4, 1998
Robert E. Masterson
/S/ VINCENT A. CARRINO Director August 4, 1998
Vincent A. Carrino
/S/ ERIC C. JACKSON Director August 4, 1998
Eric C. Jackson
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INDEX TO EXHIBITS
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Exhibit DESCRIPTION OF EXHIBIT
NO.
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4.1 Certificate of Incorporation of the Registrant, as amended to date. (The
copy of this Exhibit filed as Exhibit 3.1 to the Company's Registration
Statement on Form SB-2 (Registration No. 333-50595) is incorporated herein
by reference.)
4.2 By-Laws of the Registrant, as amended to date. (The copy of this Exhibit
filed as Exhibit 3.2 to the Company's Registration Statement on Form SB-2
(Registration 333-50595) is incorporated herein by reference.)
4.3 1998 Stock Option and Incentive Plan. (The copy of the Exhibit as filed as
Exhibit 10.1 to the Company's Registration Statement on Form SB-2
(Registration 333-50595) is incorporated herein by reference.)
5 Opinion of Baker & Daniels regarding legality of the securities being
registered.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Baker & Daniels (included in Exhibit 5).
24 Powers of Attorney (included on the Signature Page of the Registration
Statement).
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EXHIBIT 5
BAKER & DANIELS
300 NORTH MERIDIAN STREET
SUITE 2700
INDIANAPOLIS, INDIANA 46204
(317) 237-0300
August 4, 1998
Showpower, Inc.
18128 S. Santa Fe Avenue
Rancho Dominguez, California 90221
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Showpower, Inc., a Delaware corporation (the
"Company"), in connection with the preparation and filing with the Securities
and Exchange Commission (the "Commission") of the Company's Registration
Statement on Form S-8 (the "Registration Statement") under the Securities Act
of 1933 (the "Act"), registering the offer and sale of up to 565,500 shares
(the "Incentive Shares") of the Company's common stock, $0.01 par value (the
"Common Stock"), pursuant to the Company's 1998 Stock Option and Incentive
Plan, as amended (the "Incentive Plan").
In so acting, we have examined and relied upon the originals, or copies
certified or otherwise identified to our satisfaction, of such records,
documents and other instruments as in our judgment are necessary or appropriate
to enable us to render the opinion expressed below.
Based on the foregoing, we are of the opinion that the Incentive Shares have
been duly authorized and, when issued in accordance with the Incentive Plan,
will be validly issued, fully paid and non-assessable.
Our opinion expressed above is limited to the federal law of the United
States and the law of the State of Delaware.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not thereby concede that
we are within the category of persons who consent is required under Section 7
of the Act or the Rules and Regulations of the Commission thereunder.
Very truly yours,
/s/ BAKER & DANIELS
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
of Showpower, Inc. on Form S-8 of our report dated March 6, 1998, except for
Note 17, as to which the date is May 19, 1998 (which expresses an unqualified
opinion and includes an explanatory paragraph relating to a change in
Showpower, Inc.'s estimated useful lives of and method of accounting for
depreciation of property and equipment) appearing in the prospectus filed by
Showpower, Inc. pursuant to Rule 424(b) under the Securities Act of 1933
(Registration No. 333-50595).
/s/ Deloitte & Touche LLP
Los Angeles, California
July 29, 1998
