Registration No. ______________
As Filed with the Securities and Exchange Commission on March 30, 2000
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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AVALON CORRECTIONAL SERVICES, INC.
(Exact Name of Registrant as Specified in its Charter)
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Nevada 8999 13-3592263
(State of Incorporation (Primary Standard Industrial (I.R.S.
or Organization) Classification Code No.) Employer
entification No.)
13401 Railway Drive
Oklahoma City, Oklahoma 73114
(405) 752-8802
(Name, address, including zip code and telephone number, including
area code, of Registrant's principal executive office)
DONALD E. SMITH With Copies To:
Chief Executive Officer Mark A. Robertson, Esq.
AVALON CORRECTIONAL SERVICES, INC. Robertson & Williams
13401 Railway Drive 3033 N.W. 63rd St., Ste. 160
Oklahoma City, Oklahoma 73114 Oklahoma City, OK 73116
(Name and address of agent for service) (405) 848-1944
(405) 752-8802
(Telephone number, including
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
================================================================================
Proposed Proposed
Maximum Maximum
Title of Securities Amount to Offering Price Aggregate Amount of
to be Registered be Per Unit Offering Registration
Registered Price Fee(b)
===============================================================================
Common Stock (par value
$.001 per share) 350,000 (a) (a) $161.70
Shares
===============================================================================
Approximate Date of Proposed Sales: From time to time after effective
date of this Registration Statement.
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(a) Price will be determined according to plan rules, using the fair market
value of the Common Stock as reported on the NASDAQ Small Cap Market
System.
(b) Filing fee was calculated pursuant to 17 CFR 230.457(c), using a price of
$1.75 which is the average bid and ask price of Avalon Correctional
Services, Inc. Common Stock on March 24, 2000, as reported on NASDAQ Small
Cap Market System which is within 5 business days prior to the date of
filing.
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This is the registration of additional securities of the same class as other
securities for which a registration statement has been filed on Form S-8 and is
effective relating to an employee benefit plan. The contents of the earlier Form
S-8 Registration Statement No. 33-80129 are incorporated herein by reference.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I will be sent
or given to employees as specified by Rule 428(b)(1). In accordance with the
instructions to Part I of Form S-8, such documents will not be filed with the
Commission either as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the Securities and
Exchange Commission (the "Commission") are incorporated by reference in this
Registration Statement, except to the extent that any statement or information
contained therein is modified, superseded or replaced by a statement or
information contained in any subsequently filed document incorporated herein by
referenced:
(a) The Registrant's Annual Report on Form 10-KSB for the year ended
December 31, 1999.
(b) All reports filed with the Commission pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (the "1934 Act") since
December 31, 1999.
(c) The description of securities to be registered contained in the
Registration Statement filed pursuant to Section 12 of the 1934 Act
relating to the Registrant's Common Stock, including any amendments
or reports filed for the purpose of updating such description.
(d) All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c) 14 or 15(d) of the 1934 Act, prior to the
filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all
such securities remaining unsold.
Item 4. Description of Securities.
A description of the Registrant's common stock, par value $0.001 per
share, is incorporated by reference under Item 3.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Chapter 78 of the Nevada Revised Statutes (Private Companies) provides
that a director, officer, employee or agent of the Corporation may be
indemnified against suit or other proceeding whether it were civil, criminal,
administrative or investigative if he becomes a party to said lawsuit or
proceeding by reason of the fact that he is a director, officer, employee or
agent of the corporation. The compensation for indemnification includes
judgments, fines and amounts paid in settlement actual 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
interest of the corporation.
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However, no indemnification shall be made in respect of any claim, issue
or matter as to which such person shall have been judged liable for negligence
or misconduct in the performance of his duty to the corporation, unless the
court in which the action or suit is brought shall determine that despite his
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to be indemnified for expenses such court shall
deem proper.
The By-Laws of the corporation outline the conditions under which any
director or officer of the registrant may be indemnified. Article V provides
that to the extent and in the manner permitted by the laws of the State of
Nevada, the corporation shall 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 an action by or in the right of the corporation, by reason of the
fact that such person 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.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Number Description of Exhibit
4. Form of Stock Certificate (1)
5. Opinion of Counsel re: Legality.
10. Stock Option Plan adopted by Board of Directors on August 16, 1994 (2)
23 (a)Consent of Independent Accountants.
(b)Consent of Counsel (included in Exhibit 5).
Footnotes:
1) Incorporated herein by reference to the Registrant's Registration
Statement on Form S-18 dated March 26, 1991.
2) Incorporated herein by reference to the Registrant's Registration
Statement on Form SB-2 dated September 13, 1995 and amended
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, as amended (the "1933 Act");
(ii) To reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in
the information in the Registration Statement; and
(iii) To include any additional or changed material information on
the plan of distribution;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(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 under the 1934 Act
that are incorporated by reference in the Registration
Statement.
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2. For determining any liability under the 1933 Act, each such
post-effective amendment as a new registration statement of the
securities offered, and the offering of the securities at that time
to be the initial bona fide offering.
3. To file a post-effective amendment to remove from registration any
of the securities that remain unsold at the end of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 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.
Insofar as indemnification for liabilities arising under the 1933 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 1933 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 1933 Act
and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the 1933 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 Oklahoma City, State of Oklahoma on this 24th day of March, 2000.
AVALON CORRECTIONAL SERVICES, INC.
By: S// DONALD E. SMITH
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Donald E. Smith
Chief Executive Officer and Director
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Pursuant to the requirements of the 1933 Act, this Registration Statement
has been signed by the following persons in the capacities indicated on the
dates indicated below:
Signature Capacity Date
_S// DONALD E. SMITH________ Chief Executive Officer March 27, 2000
Donald E. Smith and Director
_S// JERRY M. SUNDERLAND____ President and Director March 27, 2000
Jerry M. Sunderland
_S// LLOYD LOVELY____________ Vice President of Finance March 27, 2000
Lloyd Lovely
_S// ROBERT O. MCDONALD______ Director March 28, 2000
Robert O. McDonald
_S// MARK S. COOLEY_________ Director March 28, 2000
Mark S. Cooley
_s// JAMES P. WILSON________ Director March 28, 2000
James P. Wilson
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EXHIBITS INDEX
Exhibit
Number Description of Exhibit
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4 Form of Stock Certificate(1)
5 Opinion of Robertson & Williams re: Legality.
10 Stock Option Plan (2)
23(a) Consent of Independent Accountants.
23(b) Consent of Counsel (included in Exhibit 5).
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(1) Incorporated by reference to Exhibit 3(i) to the Registrant's Form S-18
dated October 26, 1991.
(2) Incorporated by reference to Exhibit 10(ix) of Registrant's Form SB-2
Registration No. 33-83932 dated September 13, 1994.
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Exhibit 23 (a)
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated February 19, 1999, accompanying the
financial statements included in the Annual Report of Avalon Community Services,
Inc., (now known as Avalon Correctional Services, Inc.) and subsidiaries on Form
10-K for the year ended December 31, 1998. We hereby consent to the
incorporation by reference of the aforementioned report in this Registration
Statement on Form S-8.
GRANT THORNTON LLP
Oklahoma City, Oklahoma
March 24, 2000
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Exhibit 5
ROBERTSON & WILLIAMS
Attorneys and Counselors at Law
3033 Northwest 63rd Street, Suite 160
Oklahoma City, Oklahoma 73116-3607
(405) 848-1944 o Fax (405) 843-6707
March 28, 2000
Avalon Correctional Services, Inc.
13401 Railway Drive
Oklahoma City, Oklahoma 73114
Gentlemen:
This firm has acted as counsel to Avalon Community Services, Inc. (the
"Company") in connection with its registration on Form S-8 (the "Form S-8") of
350,000 shares of common stock, par value $0.001 per share (the "Shares"),
issuable in connection with the Company's Stock Option Plan (the "Plan"). This
letter is furnished to you pursuant to the requirements of Item 601(b)(5) of
Regulation S-K, 17 C.F.R. ss. 2298.601(b)(d)(5), in connection with such
registration.
For purposes of this opinion, we have examined copies of the following
documents:
1. An executed copy of the Form S-8.
2. A copy of the Plan, dated August 16, 1994 and amended December
1, 1996.
3. The Articles of Incorporation of the Company.
4. The Bylaws of the Company.
5. Resolutions of the Board of Directors of the Company adopted
at a meeting held on August 16, 1994 and the minutes of the
shareholder meeting approving the Plan on April 25, 1995. The
Resolutions of the Board of Directors of the Company amending
the Plan adopted at a meeting held on December 1, 1996.
We have not, except as specifically mentioned above, made any independent
review or investigation of the organization, existence, good standing, assets,
business or affairs of the Company, or of any other matters. In our examination
of the aforesaid documents, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity and conformity with the
originals, and the authenticity and conformity with the original documents of
all documents submitted to us as certified, telecopied, photostatic, or
reproduced copies.
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Avalon Correctional Services, Inc.
March 28, 2000
Page 2
We have not, except as specifically identified herein, been retained or
engaged to perform, nor have we performed, any independent review or
investigation of any statutes, ordinances, laws, regulations, agreements,
contracts, instruments, or corporate records to which the Company, or any
subsidiary of the Company, may be a party or may be subject. This opinion is
given in the context of the foregoing.
This opinion is based as to matters of law solely on the General
Corporation Law of the State of Nevada, and we express no opinion as to any
other laws, statutes, regulations, or ordinances, including without limitation
any federal or state tax or securities laws or regulations.
Based upon, subject to, and limited by the foregoing, we are of the
opinion that the Shares, when issued and delivered in the manner and on the
terms described in the Form S-8 and the Plan, will be legally issued, fully paid
and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the Form
S-8. Nothing herein shall be construed to cause us to be considered "experts"
within the meaning of Section 11 of the Securities Act of 1933, as amended.
Very truly yours,
s// Mark Robertson
ROBERTSON & WILLIAMS
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